Conduct of Business. From the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period: (a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement; (b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests; (c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a); (d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business; (e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice; (f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger); (g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof; (h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries; (i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations; (j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing; (k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business; (l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate; (m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness; (n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP; (o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof; (p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or (q) authorize or commit or agree to do any action prohibited under this Section 8.01.
Appears in 1 contract
Samples: Business Combination Agreement (RMG Acquisition Corp. II)
Conduct of Business. From Except as otherwise contemplated by the date of this Agreement until the earlier of transactions provided for herein, pending the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company Acquiror shall, and the Majority Stockholder shall cause its Subsidiaries Acquiror to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to operate and carry on the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business only in the ordinary course consistent with past practicepractices. Notwithstanding anything to the contrary contained in the immediately preceding sentence, including pending the Closing:
(a) Acquiror shall, and the Majority Stockholder shall cause Acquiror to, take reasonable actions to maintain its assets in substantially their present state of repair, reasonable wear and tear excepted, and to preserve the goodwill of the business and present business Acquiror's relationships (contractual or otherwise) with its customers, suppliers, joint venture partnersdistributors, distributors and creditors and others having material business relationships with it and retain its current officers employees and other key employees and Persons or entities having business relations with it.
(iib) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except Except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit EAgreement, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company Acquiror shall not, and the Company Majority Stockholder shall cause its Subsidiaries not permit Acquiror to, during take any of the Interim Periodfollowing actions without the prior written approval of EBonline:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assumeSell, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge consume or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice or merge, consolidate or engage in any other business combination with any Person;
(ii) adoptAmend, modify, cancel or waive any rights under any Contract listed on SCHEDULE 3.13(A) or enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect Contract that would be required to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businessesbe disclosed on SCHEDULE 3.13(A), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(giii) make Make any capital expenditures (expenditure or commitment commit to make any capital expenditures) expenditure in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof5,000;
(hiv) make Mortgage, pledge or subject to Encumbrances (other than purchase money liens) any loans, advances properties or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course assets of business consistent with past practice or between the Company and its SubsidiariesAcquiror;
(iv) amend in a manner materially detrimental to the Company Assume, incur or guarantee any of its Subsidiaries, terminate, cancel, surrender, permit to lapse obligations or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required liability for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relationsborrowed money;
(jvi) except, Make any changes in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting practices;
(vii) Knowingly act or omit to do any act within its reasonable control which will cause it or the reported consolidated assetsMajority Stockholder to breach any representation, liabilities warranty or results obligation of operations Acquiror or the Majority Stockholder contained in this Agreement;
(viii) Except as provided herein, amend its Articles of the Company Incorporation or By-laws;
(ix) Issue any of its Subsidiariescapital stock or issue any option, except insofar as may have been required by a warrant or other right exercisable for or any security convertible into or exchangeable for its capital stock or redeem, purchase or otherwise acquire any shares of its capital stock or change in Lawthe rights, IFRS terms or GAAPpreferences of any of its securities, options, warrants or other instruments currently outstanding;
(ox) fail to maintainDeclare, cancel set aside or materially change coverage under pay any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained dividend or make any other payment or distribution with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereofcapital stock;
(pxi) fail in a material manner Increase or decrease the wages, salaries, compensation, pension or other benefits payable to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practiceany former employee or any current employee; or
(qxii) authorize or commit or agree Agree to do any action prohibited under of the foregoing, except as contemplated by this Section 8.01Agreement.
Appears in 1 contract
Samples: Merger Agreement (Cerx Venture Corp)
Conduct of Business. From Except as contemplated by this Agreement including, without limitation, the implementation of Lasiris Corporate Reorganization and for the purpose of changing the Company's fiscal year end or as is necessary to effectuate the transactions Offer of Purchase and Sale contemplated hereby, between the date of this Agreement until the earlier of and the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Date, the Company shall, shall and the Stockholders shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing to:
(which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (ia) conduct and operate Conduct its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual refrain from changing or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality introducing any method of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, management or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) operations except in the ordinary course of business in relation consistent with prior practices;
(b) Refrain from making any change or incurring any obligation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other make a change in their capitalizationits Articles of Incorporation, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company By-laws or its Subsidiaries to existing employees), pledge, encumber, dispose of authorized or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their issued capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted Refrain from declaring, setting aside or not restricted by this Section 8.01 enter intopaying any dividend, assumemaking any other distribution in respect of its capital stock or making any direct or indirect redemption, assign, partially purchase or completely amend or modify any material term other acquisition of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a)stock;
(d) sellRefrain from making any purchase, transfersale or disposition of any asset or property costing more than $40,000 (CDN) other than in the ordinary course of business, leasefrom purchasing any capital asset for use in the business costing more than $80,000 (CDN) and from mortgaging, pledge pledging, subjecting to a lien or otherwise encumber, abandon, cancel or convey or dispose encumbering any of any assets, properties or business the assets of the Company other than in the ordinary course of business.
(e) Refrain from incurring or assuming any of its Subsidiariesliability, including Real Property, except obligation or indebtedness for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not borrowed money in an aggregate amount in excess of $5,000,000 in the aggregate, 25,000 (iiCDN) in respect of other than any power generating assets, with a capacity such liability relating to amounts not in excess of 500 megawatts, to exceed $250,000 (iiiCDN) as between the Company and its Subsidiaries, (iv) in relation to borrowed under the Company’s Subsidiaries, 's existing line of credit with the Toronto Dominion Bank which amounts are borrowed in the ordinary course of business and consistent with the Company's past practice or (v) incurring or assuming any contingent liability as a guarantor or otherwise with respect to the creation obligations of others, and from incurring any pledge, encumbrance other contingent or other security interest over any land, property fixed obligations or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries liabilities except in the ordinary course of business;
(ef) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant Refrain from canceling any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services indebtedness owed to the Company or waiving any claims or rights of its Subsidiariessubstantial value, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(fg) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing Refrain from making any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than change in the ordinary course of business in relation compensation payable or to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation become payable to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries officers, employees, agents or independent contractors except in connection with a value in excess of $1,000,000 (other than in the ordinary course of business)promotions made, or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiariesbonuses paid, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiariespractices, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect provided that payment of a material amount of Taxes, or enter into any Tax sharing or similar agreement, bonus to each Principal Stockholder in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in accordance with the aggregate, reasonably provisions set forth on Schedule 3.5(g) attached hereto shall be expected deemed to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) be in the ordinary course of business consistent with the past practice; orpractices;
(qh) authorize Refrain from adopting or commit amending any Employee Benefit Plan or agree collective bargaining agreement, except as may be required by law;
(i) Refrain from prepaying loans (if any) from its shareholders, officers or directors or making any change in such borrowing arrangements; Offer of Purchase and Sale
(j) Refrain from making any change in any method of accounting or accounting practice or policy except in connection with the capitalization of costs of equipment used in connection with the Company's research and development activities and other than those required by generally accepted accounting principles;
(k) Use its best efforts consistent with its prior business practices to do prevent any change with respect to its management and supervisory personnel and banking arrangements;
(l) Use its best efforts consistent with its past practices to keep intact its business organizations, to keep available its present employees and to preserve the goodwill of all suppliers, customers and others having business relations with it in connection with the Company; and
(m) Have in effect and maintain at all times all insurance of the kind described in Section 2.20 above or equivalent insurance with any substitute insurers.
(n) Except as contemplated by the Agreement or as is necessary to effectuate the transactions contemplated hereby, between the date of this Agreement and the Closing Date, SPEQ and the SPEQ Stockholders shall cause SPEQ to refrain from taking any action prohibited under this Section 8.01other than (i) to continue to hold the shares of the Company Stock held by SPEQ as of the date hereof and (ii) to issue not more than 19 shares of SPEQ Stock to the SPEQ Stockholders in repayment of certain obligations of SPEQ to its stockholders.
Appears in 1 contract
Conduct of Business. From Except as permitted in Schedule 5.1 or as otherwise consented to by the Acquirer, from the date of this Agreement and until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Closing, the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim PeriodSubsidiaries) shall:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of conduct its Subsidiaries except (i) business only in the case of the Companyordinary course on a basis consistent with past practice;
(b) refrain, for any such change or amendment made other than in the ordinary course of business business, from making any purchase, sale or disposition of any material asset or property, and which will not have an material adverse impact on the Company’s ability from mortgaging, pledging, subjecting to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property a lien or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed placing an Encumbrance on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, assets except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(ec) except as refrain from entering into any employment contract or granting any bonus or otherwise required by Law making any change in the compensation payable or to become payable to any of its employees, other than pursuant to compensation programs existing Company Benefit Plans, policies or Contracts on the date hereof;
(d) use reasonable efforts to keep intact the business organization of the Company or its Subsidiaries, in effect on and the date of this Agreement, (i) grant any material increase in compensation, benefits or severance Subsidiaries and to any key employee or manager keep available to the Acquirer present employees of the Company and the Subsidiaries;
(e) refrain from making any dividend or its Subsidiaries with annual base compensation distribution, redemption, recapitalization or other transaction involving the capital stock of more than $150,000, except the Company;
(f) keep in full force and effect the Company's existing insurance;
(g) maintain their books and records in the ordinary course of business consistent with past practice (ii) adoptnormal and customary manner and not propose or adopt any changes to the accounting methods, enter into principles or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of practices used by the Company or its Subsidiaries, except in connection with the promotion, hiring as otherwise required by law or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereofGAAP;
(h) make any loans, advances not amend their certificate of incorporation or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiariesby-laws;
(i) amend in a manner materially detrimental not merge or consolidate with, or agree to the Company merge or consolidate with, or purchase or otherwise acquire, or agree to purchase or otherwise acquire, any business or any material amount of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relationsassets;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, incur Indebtedness other than Indebtedness incurred in the ordinary course of business (which for under the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material IndebtednessCompany's existing facilities;
(nk) not make (or commit to make) any change loan, advance or capital contributions or investment in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of any Person (except that which the Company or makes in any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP);
(ol) fail continue to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working make capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) expenditures in the ordinary course of business consistent with past practice; orbut not to exceed $50,000.00 in the aggregate;
(qm) authorize not make, revoke or commit amend any material Tax election; not execute any waiver of restrictions on assessment or agree collection of any Tax; and not enter into or amend any agreement or settlement with any Tax Authority;
(n) not take any action, or omit to do take any action prohibited under this action, that would cause the condition contained in Section 8.016.1 not to be satisfied at, or as of any time prior to, the Effective Time; and
(o) promptly advise the Parent in writing of any change or effect that has had or could reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Conduct of Business. From Except at set forth in Section 7.1 of the Disclosure Schedule or as consented to in writing by Buyer, such consent not to be unreasonably withheld, delayed or conditioned, from the date of this Agreement until the earlier of hereof through the Closing Date and or the earlier termination of this Agreement as provided in accordance with its terms (the “Interim Period”)Article IX, the Company shall, Seller covenants and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant agrees to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made Assets in the ordinary course of business and which will not have an material adverse impact on consistent with past practices, and, without limiting the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case generality of the Company’s Subsidiariespreceding, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;Seller shall:
(ba) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, not sell, transfer, pledgeassign, encumber or grant any rightconvey, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem abandon or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real PropertyAssets, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries sales in the ordinary course of business;
(eb) except as otherwise required by Law not make any commitment or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business agreement with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits capital project relating to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation Asset in excess of $1,000,000 individually 500,000 that would become an Assumed Liability;
(c) not enter into, terminate, amend, restate, supplement, waive or $2,500,000 permit to lapse (prior to its applicable expiration date) in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries)any material respect any material Permit, (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any contract that is part of the material assets or material Intellectual Property pertaining to the business of the Company Assets, or any of its Subsidiaries with instrument creating a value in excess of $1,000,000 (Real Property Interest that is or would be an Asset conveyed to Buyer by Seller at the Closing or that would affect any such Asset, other than in the ordinary course of business), ;
(d) not create or (vi) adopt or enter into a plan permit the creation of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries Lien on any Asset (other than Permitted Encumbrances);
(e) not grant or create any preferential right to purchase, right of first opportunity or other material transfer restriction or requirement with respect to any Asset;
(f) not make, amend or revoke any material election with respect to any Taxes relating to the Merger)Assets;
(g) make any capital expenditures (or commitment not fail to make any capital expenditures) maintain insurance coverage substantially equivalent to its existing insurance coverage of the Assets as in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following effect on the date hereof;
(h) make not modify or operate the Assets in any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation way that would subject them to the Company’s Subsidiaries, in jurisdiction of the ordinary course of business consistent with past practice or between the Company and its SubsidiariesFederal Energy Regulatory Commission;
(i) amend other than in a manner materially detrimental respect of the [***], settle or compromise any action, suit, investigation or proceeding relating to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit Assets that could be reasonably expected (due to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct nature of the claims involved or the scope of their applicability to Seller’s business or operations) to involve amounts of $100,000 or more in value; ***Certain information in this document has been omitted and filed separately with the Company or any of its Subsidiaries, or otherwise terminate its relationships Securities and Exchange Commission. Confidential treatment has been requested with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;respect to the omitted portions.
(j) exceptnot engage in any practice which would have the effect of (i) accelerating to periods before the Closing collection of revenues attributable to the Assets that would otherwise be expected (based on past practice) to be made in periods after the Closing, or (ii) postponing to periods after the Closing payment of costs in respect of the Assets that would otherwise be expected (based on past practice) to be made in periods before the Closing, in relation to the Company’s Subsidiaries, each case in a manner outside the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment inconsistent with past practice and contrary to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;generally accepted industry practices; or
(k) enter into any agreement that restricts the ability of the Company not agree, resolve, authorize or any of its Subsidiaries to engage or compete commit, whether in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently writing or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01of the foregoing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Summit Midstream Partners, LP)
Conduct of Business. From the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms Article VIII, except (u) as otherwise explicitly contemplated by the “Interim Period”Transaction Documents (including in connection with the Reorganization), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, (v) as required by applicable Law Laws or pursuant mandated by a Governmental Entity, (w) as set forth in Schedule 5.2, (x) in connection with the mitigation (or attempted mitigation) of health and safety risks associated with any Contagion Event or as recommended or mandated by a Governmental Entity in response thereto, (y) to the extent relating exclusively to any COVID-19 Measures applicable to the Company and its Subsidiaries Seller-Retained Subsidiary or Seller-Retained Asset or (z) as consented to by RMG II Purchaser shall otherwise consent in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), Seller shall, and shall cause each of the Acquired Companies and its and their respective Affiliates (including the Seller-Retained Subsidiaries) to, directly or indirectly conduct the Acquired Business in the ordinary course and to use commercially reasonable efforts to (i) conduct maintain and operate preserve substantially intact the Acquired Business and its material business in the ordinary course consistent with past practiceorganizations, including to preserve the property, goodwill and present business relationships (contractual or otherwise) with its Governmental Entities, employees, independent contractors, service providers, agents, customers, suppliers, joint venture partnerscreditors, distributors and creditors and others having material business relationships with it and retain its current officers lessors and other key employees stakeholders and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company Seller shall not, and the Company shall cause its Subsidiaries the Acquired Companies not to, during directly or indirectly, propose to any third party to do (other than proposals to Purchaser for the Interim Periodpurpose of seeking consent hereunder), cause or permit any of the following with respect to the Acquired Companies or the Acquired Business:
(ai) amend or otherwise change or amend the certificate of incorporation, bylaws or other organizational documents Organizational Documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, Acquired Companies;
(ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property sell or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging merger, consolidation or consolidating with disposition of stock or purchasing any equity interest in assets or a substantial portion of the assets ofotherwise) any business or any corporation, partnership, association, joint venture partnership or other business organization or division thereof or otherwise sell, assign, encumber, transfer, lease, license, sublicense, covenant not to assert, abandon, transfer, allow to expire or lapse (other than in the ordinary course of business in relation to the Company’s Subsidiariesstatutory expirations for which an extension cannot be obtained), or dispose (ivcollectively, “Dispositions”) make any acquisition of any assets, business, equity interests rights or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiariesincluding Intellectual Property), in each case, except for (vA) sellsales, transfer, license, assign, fail to maintain dispositions or otherwise dispose licensing of or encumber any of the material equipment and/or inventory and other assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between pursuant to existing Contracts, (B) other assignments, licenses, expirations or other Dispositions of assets, rights or properties (including Intellectual Property) to the Company and its SubsidiariesAcquired Companies or of assets, rights, or properties made in the ordinary course of business with a value of less than $5,000,000 in the aggregate or (C) sales of customer accounts receivables in the ordinary course of business pursuant to customer-sponsored supply chain financing programs;
(iii) disclose any material trade secrets or material confidential information of any Acquired Company (or any of their customers) to any other Person (other than in the ordinary course of business to a Person bound by adequate confidentiality obligations);
(iv) issue, sell, grant, transfer, encumber or dispose of (or authorize the issuance, sale or disposition of), any shares of capital stock, voting securities or other ownership interest, or any options, warrants, convertible securities or other rights of any kind to acquire or receive any shares of capital stock, any voting securities or other ownership interest (including stock appreciation rights, phantom stock or similar instruments), of the Acquired Companies, in each case, except for any issuance, sale or disposition to another Acquired Company;
(v) declare or pay any dividend on, or make any other distribution in respect of, its equity securities, other than in the form of cash or as contemplated by the Reorganization;
(vi) incur, guarantee or become liable for any indebtedness for borrowed money, other than (i) amend extensions of credit under the Credit Facility or otherwise in a manner materially detrimental the ordinary course of business and consistent with past practice, (ii) intercompany loans between the Acquired Companies and their respective wholly-owned subsidiaries or among the Acquired Companies’ respective wholly-owned subsidiaries, (iii) intercompany loans between the Acquired Companies and Seller or its Affiliates to the extent such loans will be settled prior to Closing as contemplated by this Agreement and (iv) guarantees by any Acquired Company or any Acquired Company’s wholly-owned subsidiaries of Indebtedness of any other Acquired Company or any of its Subsidiaries, terminate, cancel, surrender, permit wholly-owned subsidiaries permitted pursuant to lapse clauses (i) and (ii) of this Section 5.2(vi) or fail to renew existing on the date hereof;
(vii) except as contemplated by this Agreement or maintain as required by any material authorization from a Governmental Authority or material Permit required for the conduct Seller Employee Plan in existence as of the business of date hereof: (I) increase or reduce the compensation payable or to become payable or the benefits provided to any Acquired Company Employee with an annual base salary greater than $150,000, except for any increase in compensation up to an amount that an individual was entitled to receive prior to any reduction by any Acquired Company or any of its Subsidiariessubsidiaries in response to a Contagion Event (including any lump-sum payment equal to the cumulative amount of compensation such individual would otherwise have received during the period of any such reduction in the absence of such reduction); (II) establish, adopt, enter into, terminate or amend any Acquired Company Employee Plan or establish, adopt or enter into any plan, agreement, program, policy, trust, fund or other arrangement that would be an Acquired Company Employee Plan if it were in existence as of the date of this Agreement (for purposes of clarity, changes made to health and welfare plans in connection with the upcoming plan year for open enrollment will not be considered plan amendments); (III) loan or advance any money or other property to any Acquired Company Employee (other than loans or advances made in the ordinary course of business that are immaterial in amount, individually and in the aggregate); (IV) grant, pay, provide or modify any severance, retention, change in control or termination payment or benefit to, or otherwise accelerate any amount of benefit to, any Acquired Company Employee; (V) hire or promote, or terminate its relationships with or demote (in each case, other than for cause), or give notice or indicate any Governmental Authorityintent to hire or promote, customersor terminate or demote (in each case, suppliers, contractors and other Persons with which it has material business relations;
(j) exceptthan for cause), in relation to the Company’s Subsidiarieseach case, any Acquired Company Employee with an annual base salary greater than $200,000; or (VI) other than in the ordinary course of business, consistent with past practice, terminate or as required by applicable Lawplace on unpaid leave or furlough, make or change give notice or indicate any material Tax election intent to terminate or adopt place on unpaid leave or change furlough any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority Acquired Company Employee;
(viii) solely with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Acquired Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any ActionEmployees, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) business, (i) incurannounce, guarantee implement or otherwise become liable for (whether directly, contingently or otherwise) effect any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) early retirement program or (ii) except take any action that would trigger the notification requirements under the WARN Act;
(ix) enter into, modify, renew, extend, terminate, waive or amend, in any material respect the terms of any collective bargaining agreement that pertains to any Acquired Company Employees;
(x) other than in the ordinary course of business, enter into, modify, renew, extend, terminate, waive or amend, restate in any material respect the terms of any Material Contract;
(xi) surrender, terminate, withdraw, cancel, transfer or modify any terms Material Permit held by an Acquired Company;
(xii) except as it relates solely to a Consolidated Return, make or change any material Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, enter into any material closing agreement, settle any material Tax claim, audit or assessment, take any affirmative action to surrender any right to claim a material Tax refund, incur any material liability for Taxes other than in the ordinary course of business, waive or extend any statute of limitations in respect of Taxes or period within which an assessment or reassessment of Taxes may be issued, or prepare or file any Tax Return (or any agreement amendment thereof) unless such Tax Return was prepared in a manner consistent with past practice;
(xiii) settle or compromise any pending or threatened Actions relating to the Acquired Business other than settlements or compromises for pending or threatened Actions solely for monetary damages without admission of fault or wrongdoing where the amount paid (net of insurance proceeds receivable) does not exceed $1,000,000 or, if greater, does not exceed the total amount reserved for such matter in Seller’s Financial Statements;
(xiv) with respect to each Leased Real Property, surrender, terminate, encumber, sublease, enter into, or materially amend any outstanding material IndebtednessLease, sublease, license or other occupancy agreement; provided, however, that the expiration of any Real Property Lease in accordance with its terms shall not require Purchaser’s consent;
(nxv) enter into any new line of business or materially change, abandon or discontinue any existing line of business;
(xvi) adopt a plan or agreement of complete or partial liquidation, dissolution of any Acquired Company or enter into voluntary bankruptcy proceedings, other than as contemplated by the Reorganization;
(xvii) make any change in financial any method of accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been auditing practice other than those required by a change in Law, IFRS GAAP or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of applicable Law after the date hereof;
(pxviii) fail in a cancel or reduce or permit to lapse any material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practiceInsurance Policies; or
(qxix) agree, authorize or commit or agree to do any action prohibited under of the foregoing actions described in clauses (i) through (xviii) in this Section 8.015.2. Notwithstanding the foregoing, nothing in this Section 5.2 shall prevent, impede, or restrict the ability of Seller to consummate the Reorganization, in accordance with Section 5.1. Without limiting this Section 5.2, nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct the operations of the Acquired Companies prior to the Closing. Prior to the Closing, Seller and the Acquired Companies shall exercise, consistent with and subject to the terms and conditions of this Agreement, including this Section 5.2, control and supervision over such matters.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nn Inc)
Conduct of Business. From the date hereof to the Closing Date, Sellers will carry on its Ski Area businesses and activities in substantially the same manner as they have previously been carried out, in the ordinary course of business, and will not employ methods of manufacture, purchase, sale, lease, management, accounting, or operation that vary from those methods used by Sellers outside of the ordinary course of business consistent with past practices recognizing that American Ski has owned WVSAL since only June 28, 1996. Without limiting the foregoing except as specifically contemplated in this Agreement, from the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditionedClosing, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim PeriodSellers will:
(a) change not engage in any transaction which would be inconsistent with any representation, warranty or amend the certificate covenant of incorporation, bylaws Sellers set forth herein or other organizational documents which would cause a breach of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change representation, warranty or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreementcovenant;
(b) except as provided on Schedule 10.01(b) and in the ordinary course of business in relation to the Company’s Subsidiaries (i) makebusiness, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, not sell, transfer, pledgeconvey, encumber assign, lease, license or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement otherwise dispose of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestsPurchased Assets;
(c) except as not mortgage, pledge, subject to a lien, or grant a security interest in, or otherwise permitted or not restricted by this Section 8.01 enter intoencumber, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a)the Purchased Assets;
(d) selluse reasonable efforts (without making any commitments on behalf of Buyer) to keep its business organizations intact, transferkeep available its present employees and to preserve its present relationships with customers, leasesuppliers, pledge or otherwise encumber, abandon, cancel or convey or dispose employees and others having business relationships with Sellers;
(e) not cause a breach of any assetscontract or commitment, properties collective bargaining agreement, employee benefit plan, or business of the Company any other material agreement to which either Seller is a party, or by which it or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges assets or other encumbrances properties are bound;
(f) not violate or dispositions of assets, fail to comply with laws applicable to it or its properties or business business;
(ig) furnish within fifteen (15) days after the end of a fiscal month an unaudited consolidated balance sheet and income statement of the Sellers for such period, each such balance sheet and income statement to be prepared in a manner consistent with the preparation of the Financial Statements (subject to normal year-end adjustments);
(h) not in excess of $5,000,000 in the aggregateamend, (ii) in respect of change, terminate or otherwise modify any power generating assetslease, with a capacity not in excess of 500 megawattscontract, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice agreement or (v) the creation of any pledge, encumbrance or commitment other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries than in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant not enter into, or become obliged under, any material increase in compensationcontract, benefits agreement, lease or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (commitment relating to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its SubsidiariesSki Areas, other than any employee with annual base compensation contract, agreement, lease or other commitment having a term of one (1) year or less and involving a payment by or to either Seller of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter 25,000 which is entered into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to not commit any act or permit the Company’s Subsidiaries, in occurrence of any event or the ordinary course existence of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver condition of the statutory period type described in clauses (a) through (n) of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the ClosingSection 6.17 hereof;
(k) enter into any agreement that restricts the ability upon obtaining knowledge of the Company existence of any matter specific to Sellers' business or any of its Subsidiaries to engage or compete the Purchased Assets that could reasonably likely result in any line of business, or enter into any agreement that restricts the ability a diminution of the Company Purchased Assets and or any the business of its Subsidiaries to enter into a new line Sellers and or the Ski Areas , the Sellers shall promptly inform Buyer of businesssuch matter;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do agree not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited of the acts listed above (other than pursuant to clauses (d), (g) and (k) or under this Section 8.01the circumstances specified above).
Appears in 1 contract
Conduct of Business. From the date of this Agreement until the Effective Time, or earlier of the Closing Date and the termination of this Agreement in accordance with its pursuant to the terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by of this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the each of PointeCom, Newco and Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business only in the ordinary course consistent with past practiceand, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment each of the terms of the CCPS substantially in the form set out in Exhibit EPointeCom, the conversion of any CCPS in accordance with their terms, or entering into such documents Newco and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and except as otherwise expressly provided in this Agreement or unless the Company written consent of the other parties shall cause its Subsidiaries not to, during the Interim Periodhave been obtained:
(a) except as expressly provided elsewhere in this Agreement or pursuant to the terms of any outstanding securities, make or agree to make any change or amend the certificate of incorporationin its authorized capital stock, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) than, in the case of the Company, for any such change or the amendment made to its Articles of Incorporation to create (x) the Company Class D Convertible Senior Preferred Stock having in all material respects the ordinary course of business same rights and which will not have an material adverse impact on preferences as the Company’s ability to perform its obligations under this Agreement or to consummate the TransactionsPointeCom Class A Preferred Stock, (iiy) the Company Class E Convertible Senior Preferred Stock having in all material respects the case same rights and preferences as the PointeCom Class B Preferred Stock (except that the Company Preferred Stock shall be convertible into such number of shares of Company Common Stock as would have been issued to the holders of the Company’s SubsidiariesPointeCom Preferred Stock if such holders had converted the PointeCom Preferred Stock into PointeCom Common Stock prior to the Effective Time), for any such change or amendment made in and (z) the ordinary course Class C Convertible Senior Preferred Stock and related warrants issuable upon conversion of business or (iii) as expressly contemplated by this Agreementthe PointeCom Loan;
(b) except in the ordinary course none of business in relation to the Company’s Subsidiaries (i) make, declareNewco or PointeCom will grant any option, set aside warrant, purchase right, subscription right, conversion right, exchange right or pay other contract, commitment or security providing for the issuance or sale of any dividend or distribution payable in cash, capital stock, property or otherwise with respect causing to become outstanding any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transferauthorize or otherwise dispose of any of its capital stock (Stock Rights), pledge, encumber except (i) upon the conversion or grant any right, option exercise of Stock Rights outstanding as of the date of this Agreement; (ii) for stock options issued to employees of the Company and its Subsidiaries or other commitment PointeCom and its Subsidiaries in a manner consistent with past practice which (I) do not provide for the issuance of more than 200,000 shares of their capital stock, or split, combine or reclassify any shares of their capital common stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or PointeCom in any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregatecalendar quarter, (iiII) in respect are issued at not less than the market price of any power generating assets, with a capacity not in excess the Company Stock on the date of 500 megawattsgrant, (iiiIII) as between the Company and its Subsidiaries, (iv) in relation are not issued to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice any executive officer or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts director of the Company or its Subsidiaries, and (IV) do not provide for accelerated vesting as a result of the Merger.
(c) declare or pay any dividend or distribution, other than as provided in effect on Section 7.1(f), in respect of its capital stock, or except as expressly provided elsewhere in this Agreement or pursuant to the date terms of this Agreementany outstanding securities, directly or indirectly redeem, combine, split, purchase or otherwise acquire any of its capital stock;
(id) grant any material increase in compensation, benefits the compensation payable or severance to become payable to any key employee of its officers, directors, employees, consultants or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000agents, except in the ordinary course of business consistent with past practice practices;
(iie) adopt, enter into adopt any new or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant existing employee benefit plan or provide any material bonus, employment agreement or severance or termination payments or benefits to any employee or director of the Company or its Subsidiariesagreement, except in connection with the promotion, hiring or firing of any employee (to the extent permitted as may be required by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practicelaw;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase sell or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company to sell or transfer, any of its Subsidiaries material assets, properties or rights to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, person other than in the ordinary course of business sales or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) transfers in the ordinary course of business consistent with past practice; provided, however, that the Company shall have the right and option to dispose of by sale or otherwise its subsidiary xxxxxxxxxxxxxx.xxx prior to the Closing Date and PointeCom shall have the right and option to dispose of (or arrange for the disposition subsequent to the Effective Time) its interest in Telecommute Solutions, Inc. by distributing such interest to its shareholders, or otherwise, prior to the Closing Date;
(g) cancel, or agree to cancel, any of its material receivables;
(h) increase indebtedness, other than accounts payable incurred in the ordinary course of business, consistent with past practices, incurred in connection with the construction, development, deployment and/or operation of the Company's telecommunications network in Mexico or incurred in connection with the transactions contemplated by this Agreement and as contemplated in Section 7.10 below;
(i) encumber any of its property or assets except for Permitted Encumbrances or except encumbrances incurred in connection with the construction, development, deployment and/or operation of the Company's telecommunications network in Mexico;
(j) make any commitments for capital improvements not disclosed on Schedule 7.1;
(k) enter into, or agree to enter into, any plan, agreement or arrangement granting any preferential rights to purchase or acquire any interest in any of its assets, property or rights or requiring consent of any party to the transfer and assignment of any such assets, property or rights except plans, agreements or arrangements entered into in connection with the construction, development, deployment and/or operation of the Company's telecommunications network in Mexico;
(l) purchase or acquire, or enter into any agreement, plan or arrangement to purchase or acquire, any property, rights or assets outside of the ordinary course of business except those purchases or acquisitions made in connection with the construction, development, deployment and/or operation of the Company's telecommunications network in Mexico;
(m) form or cause to be formed any subsidiary other than in the case of the Company, Newco;
(n) fail to keep its material properties insured substantially to the same extent as they are currently insured;
(o) waive any of its material rights or claims; or
(qp) authorize materially breach, materially change the terms of, materially amend or commit terminate any material contract, agreement, Permit or agree other right to do which it is a party or any of its property is subject. In the event either party shall request the other party to consent in writing to an action otherwise prohibited under by this Section 8.017.1, such other party shall use reasonable efforts to respond in a prompt and timely fashion (but in no event later than ten (10) business days following such request), but may otherwise respond affirmatively or negatively in its sole discretion.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pointe Communications Corp)
Conduct of Business. From During the period from the date of this Agreement and continuing until the earlier of the Closing Date and the termination of this Agreement or the Effective Time, HOVRS agrees (except to the extent expressly contemplated by this Agreement or as consented to in accordance with its terms (the “Interim Period”writing by Acquirer), and Acquirer agrees (except to the Company shallextent expressly contemplated by this Agreement or the Verizon Agreement or as consented to in writing by HOVRS): (a) to carry on its business in the usual regular and ordinary course in substantially the same manner as heretofore conducted; (b) to pay its debts and Taxes when due (subject to good faith disputes over such debts or Taxes); (c) to pay or perform other material obligations when due; and (d) to use all reasonable efforts to preserve intact its present business organizations, keep available the services of its present officers and key employees and preserve its relationships with material customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses shall cause be unimpaired at the Effective Time. Each party agrees to promptly notify the other parties hereto of (a) any material event or occurrence not in the ordinary course of such party's business, and of any event which could reasonably be expected to have a Material Adverse Effect on such party; and (b) any material change in its Subsidiaries tocapitalization as set forth in this Agreement (including the schedules hereto). Without limiting the foregoing, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality Section 5.1 of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries HOVRS Disclosure Schedule or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall notAcquirer Disclosure Schedule, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of Acquirer the CompanyVerizon Agreement, for HOVRS shall not cause or permit any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiariesfollowing without the prior written consent of Acquirer (which consent, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock clause (k) below, will not be unreasonably withheld by Acquirer), and Acquirer shall not cause or other equity interests in permit any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers following without the prior written consent of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.HOVRS:
Appears in 1 contract
Samples: Merger Agreement (Goamerica Inc)
Conduct of Business. From Without the prior written consent of the Buyer, during the period from the date of this Agreement until to the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Closing, the Company Seller Parties shall, and Parent shall cause its Subsidiaries the Seller Parties to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures conduct that portion of their business that is applicable to the Company Serviced Accounts, the Third Party Servicing Agreements, the Countryplace Series or the Securitization Program in substantially the same manner in which it is conducted on the date hereof, including, without limitation, consistently with practices no less stringent than Sellers’ current collection and its Subsidiaries or as consented to by RMG II in writing (which consent servicing criteria and other written policies and shall not be unreasonably conditioned, withheld, delayed or denied), use all commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws organization applicable to it the servicing of the Serviced Accounts, the Countryplace Series, the Securitization Program and its Subsidiaries and their respective businesses, assets and employeesthe Third Party Servicing Agreements. Without limiting the generality of the foregoing, except as expressly contemplated prior to the Closing, without the prior written consent of Buyer (which consent will not be unreasonably withheld), no Seller Party shall, and Parent shall cause the Seller Parties not to:
(i) violate or fail to perform any material obligation or duty imposed upon it by this Agreement any Law or the Facility Documents;
(including the amendment of the terms of the CCPS substantially in the form set out in Exhibit Eii) modify, the conversion of any CCPS in accordance with their termsamend, terminate, relinquish or assign, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to grant any waiver or release under or otherwise discharge with respect to, any guarantee or Facility Document other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), than as required by applicable Law or pursuant to subpoena, court order or similar judicial process; provided that, if any COVID-19 Measures Seller Party so takes or effects any such action as required by applicable to the Company and its Subsidiaries Law or as consented to by RMG II subpoena, court order or similar judicial process in writing (which consent shall not be unreasonably conditioned, withheld, delayed or deniedaccordance with this Section 6.1(b)(ii), the Company such Seller Party shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:provide Buyer with prior written notice of such action;
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) make any material change in servicing, billing, collection, loss mitigation practices, operations or policies of the Servicing Agreements or Securitization Programs; or
(iv) with regard to those Serviced Accounts as expressly to which the related Borrowers reside in areas that have been designated by the Federal Emergency Management Agency as having been impacted by a natural disaster, the applicable Seller Party shall furnish Buyer with information about such Seller Party’s policies, procedures and practices relating to account payment deferrals and collection activities and if such Seller Party intends to change a business practice related to such Serviced Accounts before the consummation of the transactions contemplated by this Agreement;
(b) except in , such Seller Party shall discuss the ordinary course of business in relation to intended change with Buyer before such Seller Party implements the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.
Appears in 1 contract
Conduct of Business. From the date of this Agreement until the earlier Neither Thales nor any of the Closing Date and the termination Companies have done or omitted to do anything in breach of this Agreement in accordance with its terms (the “Interim Period”)any relevant law, the Company shallstatutory requirement, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law laws or pursuant to any COVID-19 Measures regulations applicable to the Company conduct of the Business where such contravention would have a material adverse effect on the continued operation of the Business after Completion.
15 LICENCES AND CONSENTS 199
15.1 All necessary licences, consents, permits, approvals, authorities (public and its Subsidiaries private) for or as consented to in connection with carrying on the Business now carried on by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed each of Thales or denied), use commercially reasonable efforts to (i) conduct and operate its business the Companies are listed in the ordinary course consistent Disclosure Letter and have been obtained by Thales and/or the Companies to enable each of the Companies to carry on the Business lawfully in the places and in the manner in which the Business is now carried on and all such licences, consents, permits, approvals and authorities are valid and subsisting and are not subject to any unusual or unusually onerous conditions having a material effect on the conduct of the Business and have been complied with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it respects, no written notice has been received regarding any breach and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality none of the foregoing, except as expressly contemplated by this Agreement (including the amendment Companies are in material breach of any of the terms of the CCPS substantially in the form set out in Exhibit Esame nor so far as Thales is aware are there any circumstances which indicate that any material licence, the conversion of consent, permission or approval is likely to be revoked. This warranty does not cover any CCPS in accordance with their termslicences, consents, permits, approvals or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (authorities which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests are contained in any of the Company or its Subsidiariescontracts and are the subject of separate warranties above.
15.2 To the best knowledge of Thales and the Companies, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees none of the Company licences, permissions, authorisations or its Subsidiaries consents referred to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment in paragraph 15.1 above contain a right for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation other party to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted revoke or not restricted by this Section 8.01 enter intorenew, assumein whole or in part, assignsuch licences, partially permissions, authorisations or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of consents as a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business result of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts acquisition of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01Business.
Appears in 1 contract
Conduct of Business. From the date of this Agreement until the earlier of January 1, 1996, through the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries toDate, except as expressly contemplated by provided in this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries Agreement or as consented to by RMG II Buyer shall otherwise consent in writing (writing, which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to Sellers will
(i) conduct and operate its cause the business to be conducted only in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees as currently conducted; and (ii) comply in all material respects with all Laws applicable use their reasonable efforts to it preserve intact the business organization and its reputation of the business, keep available the services of the employees of Uwatec and the Subsidiaries and their respective businessespreserve the relationships with suppliers, assets customers and employeesothers having business dealings with the Uwatec Enti- ties. Without limiting If at any time during such period Sellers become aware of any material adverse change in the generality business, financial condition or results of operations of Uwatec and the foregoingSubsidiaries, Sellers shall promptly notify Buyer with respect thereto. In addition, except as set forth in this Section or otherwise expressly contemplated permitted by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit Ethis Agreement, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company Sellers shall not permit Uwatec or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or to do any of the SS Group in respect following without the prior written consent of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim PeriodBuyer:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case amend its Certificate of the Company, for any such change Incorporation or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement Bylaws (or to consummate the Transactions, comparable governing documents);
(ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside declare or pay any dividend or make any other distribution payable to shareholders whether or not upon or in cash, respect of any shares of capital stock, property ;
(iii) redeem or otherwise with respect to acquire any shares of its capital stock or issue any capital stock or other equity interests in any of the Company option, warrant or its Subsidiaries, (ii) effect right relating thereto or any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or stock;
(iv) repurchaseadopt or amend in any respect any benefit plan or collective bargaining agreement, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestsexcept as required by law;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of grant to any pledge, encumbrance executive officer or other security interest over employee any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits compensation or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000benefits, except in the ordinary course of business consistent with past practice or as may be required under existing agreements;
(iivi) adoptincur or assume any liabilities, enter into obligations or materially amend indebtedness for borrowed money or guarantee any Company Benefit Plan other than in the ordinary course of business with respect to annual renewalssuch liabilities, (iii) grant obligations or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiariesindebtedness, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(fvii) cancel any indebtedness or waive any claims or rights;
(iviii) fail to maintain except for transactions contemplated by this Agreement and/or intercompany transactions in the ordinary course of business, pay, loan or advance any amount to, or sell, transfer or lease any of its existenceassets to, (ii) or enter into a new material line any agreement or arrangement with, Sellers or any of business its affiliates (other than the electricity transmission Uwatec Entities); provided, however, that Buyer approves and distribution and wind and solar manufacturing businesses), hereby gives consent to the sale of the sailing ship "Xxxxxxxxxxx B" for a net amount of US$ 3'200'000.- (iiiafter payment of a commission of US$ 400'000.-) purchase against full release of the loan from ANZ Grindlays Bank Ltd. in the amount of US$ 3'200'000.-.
(ix) make any change in any method of accounting or otherwise accounting practice or policy;
(x) acquire (whether by merging or consolidating with with, or by purchasing any equity interest in or a substantial portion of the assets of) , or by any other manner, any business or any corporation, partnership, association, joint venture association or other business organization or- ganization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber acquire any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(gxi) make or incur any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loansthat, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect are in excess of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the ClosingCHF 500'000.-;
(kxii) enter into any agreement that restricts the ability sell, lease or otherwise dispose of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice;
(xiii) enter into any lease of real property, except any renewals of existing leases in the ordinary course of business; or
(qxiv) authorize agree, whether in writing or commit or agree otherwise, to do any action prohibited under this Section 8.01of the foregoing.
Appears in 1 contract
Samples: Share Purchase Agreement (Johnson Worldwide Associates Inc)
Conduct of Business. From During the period from the date of this Agreement and continuing until the earlier of the Closing Date and the termination of this Agreement in accordance with pursuant to its terms (or the “Interim Period”)Effective Time, the Company VFI and each of its subsidiaries shall, and shall cause its Subsidiaries to, except as expressly contemplated permitted by the terms of this Agreement or to the extent that HP shall otherwise consent in writing, which consent shall not be unreasonably withheld, or as provided in Section 4 of the VFI Schedules, carry on its business, in all material respects, in the usual, regular and ordinary course, and in compliance with all applicable laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its reasonable best efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others with which it has business dealings. In addition, except as permitted by the terms of this Agreement, and except as required by applicable Law or pursuant to any COVID-19 Measures applicable to provided in Section 4 of the Company and its Subsidiaries or as consented to by RMG II in writing VFI Schedules, without the prior written consent of HP (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct during the period from the date of this Agreement and operate its business in continuing until the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality earlier of the foregoing, except as expressly contemplated by termination of this Agreement (including pursuant to its terms and the amendment Effective Time, VFI shall not do any of the terms following and shall not permit its subsidiaries to do any of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), following (except as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:law):
(a) Waive any stock repurchase rights, accelerate, amend or change the period of exercisability of options or amend the certificate of incorporationrestricted stock, bylaws or other organizational documents of the Company reprice options granted under any employee, consultant or director stock plans or authorize cash payments in exchange for any options granted under any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreementplans;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside Grant any severance or termination pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock officer or other equity interests employee except payments in any of the Company amounts consistent with policies and past practices or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries pursuant to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stockwritten agreements outstanding, or issuepolicies existing, sell, transfer, pledge, encumber on the date hereof and as previously disclosed in writing or grant any right, option or other commitment for the issuance of shares of their capital stockmade available to HP, or split, combine or reclassify adopt any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestsnew severance plan;
(c) except as Transfer or license to any person or entity or otherwise permitted or not restricted by this Section 8.01 enter intoextend the term of any agreement with respect to, assume, assign, partially or completely amend or modify in any material term of or terminate respect any rights (excluding any expiration in accordance with its termsincluding without limitation distribution rights) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real VFI Intellectual Property, except for salesor enter into assignments of future patent rights, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company than non-exclusive licenses and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, distribution rights in the ordinary course of business and consistent with past practice practice;
(d) Declare or pay any dividends on or make any other distributions (vwhether in cash, stock, equity securities or property) the creation in respect of any pledgecapital stock or split, encumbrance combine or reclassify any capital stock or issue or authorize the issuance of any other security interest over securities in respect of, in lieu of or in substitution for any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of businesscapital stock;
(e) Repurchase or otherwise acquire, directly or indirectly, any shares of capital stock of VFI, except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts repurchases of unvested shares at cost in connection with the termination of the Company or its Subsidiaries, employment relationship with any employee pursuant to agreements in effect on as of the date hereof;
(f) Issue, deliver, sell, authorize or propose the issuance, delivery or sale of, any shares of capital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, other than the issuance delivery and/or sale of (i) shares of VFI Common Stock pursuant to the exercise of stock options therefor outstanding as of the date of this Agreement, (ii) shares of VFI Common Stock issuable to participants in the VFI ESPP consistent with the terms thereof and (iii) shares of VFI Common Stock upon the exercise of rights outstanding as of the date hereof under the 1997 Phantom Plan.
(g) Cause, permit or propose any amendments to any charter document or Bylaw (or similar governing instruments of any subsidiaries);
(h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets of, or by any other manner, any business or any corporation, partnership interest, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of VFI or enter into any material joint ventures, strategic partnerships or alliances;
(i) grant Sell, lease, license, encumber or otherwise dispose of any material increase properties or assets which are material, individually or in compensationthe aggregate, benefits or severance to any key employee or manager the business of the Company or its Subsidiaries with annual base compensation of more than $150,000VFI, except in the ordinary course of business consistent with past practice or lend funds to any third party (ii) adopt, enter into or materially amend any Company Benefit Plan other than intracompany loans and travel advances in the ordinary course of business with respect to annual renewals, business);
(iiij) grant or provide Incur any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except indebtedness for borrowed money (other than (i) in connection with the promotionfinancing of ordinary course trade payables; (ii) pursuant to existing credit facilities or any modifications, hiring renewals or firing replacements of any employee such credit facilities (it being understood that the maximum amount of borrowing which may be made under such credit facilities may be increased by up to 20% of the extent permitted by clause (iv) of this paragraphcurrent maximum amount) in the ordinary course of business consistent business; (iii) in connection with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 leasing activities in the ordinary course of business consistent with past practice;
business; or (fiv) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than for tax planning purposes in the ordinary course of business in relation to the Company’s Subsidiariesbusiness) or guarantee any indebtedness of any person for borrowed money (except that VFI may guarantee any indebtedness of any subsidiary of VFI, and any subsidiary of VFI may guarantee any indebtedness of VFI or of any other subsidiary of VFI), or issue or sell any debt securities or warrants or rights to acquire debt securities of VFI or guarantee any debt securities of others;
(ivk) make Adopt or amend any acquisition of employee benefit plan or employee stock purchase or employee stock option plan, enter into any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate employment contract (other than in than: (x) offer letters and letter agreements with employees who are terminable "at will," (y) as required by law, or (z) employment contracts that are customarily entered into outside the ordinary course of business in relation to the Company’s SubsidiariesUnited States), (v) sell, transfer, license, assign, fail pay any special bonus or special remuneration to maintain any director or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (employee other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice practice, or between increase the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company salaries or any wage rates of its Subsidiaries, terminate, cancel, surrender, permit to lapse officers or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and employees other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, than in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement consistent with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of businesspast practice;
(l) waive, release, compromise, settle or satisfy Make any pending or threatened Action or compromise or settle any liability or commence any Action, other than in payments outside of the ordinary course of business or that otherwise do not exceed in excess of $10,000,000 in the aggregate1 million for purposes of settling any dispute;
(m) (i) incurTake any action, guarantee or otherwise become liable for (whether directlypermit any of its affiliates to take any action, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which that would be reasonably likely to interfere with HP's ability to account for the avoidance Merger as a pooling of doubt, includes any refinancing interests whether or issuance not otherwise permitted by the provisions of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtednessthis Article IV;
(n) make Enter into any change in financial accounting methods, principles material agreement requiring the consent or practices materially affecting approval of any third party with respect to the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;Merger; or
(o) fail Agree in writing or otherwise to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or take any of its Subsidiaries or their assets or properties as of the date hereof;
actions described in Article 4 (pa) fail in a material manner to manage its working capital through (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventoryn) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01above.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Verifone Inc)
Conduct of Business. From and after the date of this Agreement hereof and until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries toInitial Closing, except (1) as otherwise expressly contemplated by this AgreementAgreement or any Ancillary Agreement or (2) as Purchaser shall otherwise consent in writing, as required by Seller agrees that it shall operate the Facility and use and maintain the Purchased Assets, and will cause the Facility to be operated and the Purchased Assets to be used and maintained, in the ordinary course and consistent with past practice ("Ordinary Course of Business"). Without in any way limiting the generality of the foregoing and subject to applicable Law or pursuant to any COVID-19 Measures applicable Law, from and after the date hereof and to the Company and its Subsidiaries Initial Closing, except (x) as otherwise expressly contemplated by this Agreement or (y) as consented to by RMG II Purchaser shall otherwise consent in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), Seller covenants and agrees as follows:
(a) Seller shall consult and collaborate in good faith with Purchaser with respect to hiring or engaging any Person in connection with the Facility;
(b) Seller shall use its commercially reasonable efforts to efforts, consistent with past practices and policies, to:
(i) conduct continue in full force and operate its business effect without modification all insurance policies related to the Facility or the Purchased Assets, other than modifications in the ordinary course consistent Ordinary Course of Business that do not adversely impact the benefit to Seller of such policies;
(ii) preserve intact the relationship of Seller with past practiceactual or prospective Facility Workers, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customersvendors, suppliers, joint venture partners, distributors service providers and creditors and others other third parties having material business relationships with it Seller with respect to the Purchased Assets and retain its the Facility; and
(iii) maintain all Transferred Tangible Assets in their current officers state of repair, order and condition and preserve all other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS Purchased Assets in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect its Ordinary Course of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;Business; and
(c) except as otherwise permitted or Seller shall not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify take any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;following actions:
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existencein effect, or cause to maintain in effect, all Transferred Permits and any other Permits necessary to use the Facility and the Purchased Assets in the same manner as currently used;
(ii) enter into a new material line sell, pledge, dispose of, transfer, lease, license, encumber or authorize the sale, pledge, disposition, transfer, lease, license or Encumbrance of business (any assets that are Purchased Assets, other than the electricity transmission and distribution and wind and solar manufacturing businesses), Permitted Encumbrances;
(iii) purchase create, assume or otherwise acquire (whether by merging or consolidating with or purchasing permit to exist any equity interest in or a substantial portion of the assets of) any business or any corporationEncumbrance, partnership, association, joint venture or other business organization or division thereof (other than in Permitted Encumbrances, on the ordinary course of business in relation to the Company’s Subsidiaries), Purchased Assets;
(iv) make acquire, lease, sell or license any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), real property that constitutes Purchased Assets;
(v) sell, transfer, license, assign, fail to maintain acquire any properties or otherwise dispose of assets that constitute Purchased Assets;
(vi) settle any Litigation or encumber claim or waive any of claims or rights in a manner that would constitute an Assumed Liability from and after the material assets Initial Closing;
(vii) enter into any new Contract that would be an Assumed Contract or material Intellectual Property Shared Contract or amend or renew any Contract pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger)Purchased Assets;
(gviii) make terminate, waive or amend any capital expenditures (provision of any Assumed Contract or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereofShared Contract;
(hix) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or except as required by applicable Tax Law, make or change any material Tax election or adopt or election, change any method of accounting, amend any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax ReturnReturns, enter into any material closing agreement with a Governmental Authority with respect to Taxes, surrender any right to a material Tax refund, or settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreementLiability, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company Purchased Assets or any of its Subsidiaries or their assets or properties as of the date hereofTransferred Workers;
(px) fail (A) hire, engage or transfer the employment or engagement of any Facility Worker in connection with the Facility; (B) terminate the employment or engagement of any Facility Worker; (C) negotiate, enter into, amend or extend any collective bargaining agreement or other Contract with a material manner Union that covers any Facility Worker or otherwise relates to manage its working capital the Facility or recognize as the bargaining representative for any Facility Workers; or (including D) increase the timing compensation or benefits of collection any Facility Worker other than a cost of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practiceliving or contractually mandated increase; or
(qxi) agree, in writing or otherwise, to take or authorize or commit or agree to do the taking of any action prohibited under this Section 8.01of the foregoing actions.
Appears in 1 contract
Conduct of Business. From Since April 16, 1998, the date of this Agreement until Business has been conducted in the earlier ordinary course, consistent with the past conduct of the Closing Date Business, and the termination Seller has used its best efforts to maintain, preserve, and protect the assets and goodwill of this Agreement in accordance with its terms (the “Interim Period”)Seller relative to the Business. Between April 16, 1998 and the Closing, the Company shall, and shall cause its Subsidiaries toSeller did not take or commit to take any of following actions relative to the Business, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to with the Company and its Subsidiaries or as consented to by RMG II in writing (which prior written consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to of the Purchaser: (i) conduct and operate amend its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual Bylaws or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality Articles of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the TransactionsIncorporation, (ii) in the case of the Company’s Subsidiariesexcept as specifically contemplated hereby, for any such change incur, or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) makeperform, declarepay, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquiredischarge, any shares of their capital stock obligation or other equity interests;
liability (c) except as otherwise permitted absolute or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(acontingent);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company current obligations and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness liabilities incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iviii) hire enter into any employment agreement with, extend any employee of agreements with, become liable for any bonus, profit-sharing or incentive payment to, or increase the Company compensation or benefits of, any of its Subsidiariesofficers, directors, or any other individual who is providing employees, except pursuant to presently existing plans, arrangements, or will provide services agreements disclosed in this Agreement or in a schedule to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries)this Agreement, (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, licenseencumber, assign, fail to maintain acquire or otherwise dispose of of, or encumber grant any of the material assets right with respect to, any properties or material Intellectual Property pertaining to the business of the Company assets, tangible or any of its Subsidiaries with a value in excess of $1,000,000 (intangible, other than in the ordinary course of business), or (v) make any material changes in its customary method of operation, including marketing, selling, and maintenance of business premises, fixtures, furniture, and equipment, (vi) adopt modify, amend, or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or cancel any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxesexisting leases, or enter into any Tax sharing or similar agreementcontracts, in each case if such electionagreements, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of businessleases, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, understandings other than in the ordinary course of business or that otherwise do not exceed $10,000,000 enter into any loan agreements, (vii) alter or revise the accounting principles, practices or procedures applicable to the Business unless required by GAAP, or (viii) take any other action which would cause any of the representations and warranties made by the Seller in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect Seller's Documents not to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form be true and amount equivalent correct in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties on and as of the date hereof;
(p) fail in a material manner to manage its working capital (including Closing Date with the timing of collection of accounts receivable same force and effect as if such representations and warranties had been made on and as of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01Closing Date.
Appears in 1 contract
Conduct of Business. From the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except Except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to from the Company and its Subsidiaries or as consented to by RMG II in writing (which consent date hereof through the Closing, Target shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course Ordinary Course of Business in compliance with all applicable Regulations and, to the extent consistent with past practicetherewith, including use all reasonable efforts to preserve intact its current business organization, keep its physical assets in good working condition, keep available the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain services of its current officers and other key employees and (ii) comply in all material respects preserve its relationships with all Laws applicable to it customers, suppliers and its Subsidiaries others having business dealings with it, and their respective businesses, assets and employeesshall not take any action inconsistent with this Agreement or with the consummation of the Closing. Without limiting the generality of the foregoing, from the date hereof through the Closing, Target shall not, except as expressly specifically contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II Subsidiary in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Periodwriting:
(a) change or amend the certificate of incorporation, bylaws its Charter or other organizational documents of the Company or Bylaws in any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s manner that would adversely affect Target's ability to perform its obligations under this Agreement or transfer the Assets to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementSubsidiary hereunder;
(b) enter into, extend, materially modify, terminate or renew any Contract or Lease, except in the ordinary course Ordinary Course of business in relation to the Company’s Subsidiaries (i) makeBusiness, declareor take any action that would constitute a default under, set aside or pay waive, release or assign any dividend rights under, any Contract or distribution payable in cashLease, stock, property or otherwise with respect to any capital stock willingly allow or other equity interests in permit any of the Company Target's insurance policies to be suspended, impaired or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestscanceled;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assumesell, assign, partially transfer, convey, lease, license, mortgage, pledge or completely amend or modify any material term otherwise dispose of or terminate (excluding grant or impose any expiration Encumbrance on any of the Assets, including, without limitation, the Intellectual Property, or any interests therein, except in accordance with its terms) any Contract the Ordinary Course of a type required to be listed on Schedule 4.13(a)Business;
(d) sellcreate, transfer, lease, pledge incur or otherwise encumber, abandon, cancel or convey or dispose of assume any assets, properties or business of the Company or any of its Subsidiaries, Liability not currently outstanding (including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) obligations in respect of any power generating assetscapital leases); assume, with a capacity not in excess of 500 megawattsguarantee, endorse or otherwise become liable or responsible (iiiwhether directly, contingently or otherwise) as between for the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation obligations of any pledge, encumbrance other person or other security interest over any land, property entity; or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other thanperson or entity, in relation to the Company’s Subsidiarieseach case, except in the ordinary course Ordinary Course of business consistent with past practice or between the Company and its SubsidiariesBusiness;
(i) amend in a manner materially detrimental take any action with respect to the Company grant of any bonus, severance or termination pay (otherwise than pursuant to policies or agreements of Target in effect on the date hereof that are described on the Disclosure Schedule) or with respect to any increase of benefits payable under its Subsidiariesseverance or termination pay policies or agreements in effect on the date hereof or increase in any manner the compensation or fringe benefits of any employee or pay any benefit not required by any existing Employee Benefit Plan or policy; (ii) adopt, terminateenter into or amend any Employee Benefit Plan, cancelagreement (including, surrenderwithout limitation, permit any collective bargaining or employment agreement), trust, fund or other arrangement for the benefit or welfare of any employee, except for any such amendment as may be required to lapse or comply with applicable Regulations; (iii) fail to renew maintain all Employee Plans in accordance with applicable Regulations; or maintain (iv) hire, terminate or discharge any material authorization from a Governmental Authority employee or material Permit required engage or terminate any consultant, except for the conduct hiring of persons for whom offers of employment are outstanding on the date hereof as set forth on Schedule 6.5 or in the Ordinary Course of ------------ Business;
(f) fail to pay its accounts payable and any debts owed or obligations due to it, or pay or discharge when due any Liabilities in the Ordinary Course of Business, or discharge or satisfy any Encumbrance or pay any obligation or Liability when due other than in the Ordinary Course of Business, or collect its accounts receivable in the Ordinary Course of Business;
(g) make or commit to make any capital expenditure in excess of $10,000 per item;
(h) merge or consolidate with, or purchase substantially all of the business of the Company or any of its Subsidiariesassets of, or otherwise terminate acquire any material assets or business of any corporation, partnership, association or other business organization or division thereof;
(i) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relationscapital stock;
(j) exceptfail to maintain the Assets in substantially their current state of repair, in relation excepting normal wear and tear, or fail to the Company’s Subsidiariesreplace inoperable, worn-out or obsolete or destroyed Assets in the ordinary course Ordinary Course of businessBusiness;
(k) change in any material respect its accounting methods, principles or practices, except insofar as may be required by a generally applicable change in GAAP or as required by applicable Law, Subsidiary;
(l) make or change any material Tax election or in respect of Taxes, adopt or change any material Tax accounting methodmethod in respect of Taxes, file any material amendment to any income Tax Return or other any amendment to a material Tax ReturnReturn (in which case, the written consent of Subsidiary shall not be unreasonably withheld), enter into any agreement with a Governmental Authority with respect to Taxesclosing agreement, settle or compromise any claim or assessment in respect of material TaxesTaxes (except settlements effected solely through payment of immaterial sums of money), or consent to any extension or waiver of the statutory limitation period of limitations applicable to any material claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) fail to comply in any material Indebtedness, other than Indebtedness incurred in respect with all Permits and Regulations applicable to Target or its business or to the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material IndebtednessAssets;
(n) make commence any change litigation other than (i) for the routine collection of bills, (ii) for software piracy, or (iii) in financial accounting methodssuch cases where Target in good faith determines that failure to commence suit would result in the material impairment of a valuable aspect of Target's business, principles or practices materially affecting provided that Target consults with Subsidiary prior to the reported consolidated assets, liabilities or results filing of operations of the Company or any of its Subsidiaries, except insofar as may have been required by such a change in Law, IFRS or GAAPsuit;
(o) take any action or fail to maintain, cancel take any action permitted by this Agreement with the knowledge that such action or materially change coverage under any insurance policy failure to take action would result in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or (i) any of its Subsidiaries the representations and warranties of Target set forth in this Agreement becoming untrue or their assets or properties as (ii) any of the date hereof;conditions set forth in Article VIII not being satisfied; or ------------
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize enter into any agreement, or commit or agree otherwise become obligated, to do any action prohibited under this Section 8.01hereunder.
Appears in 1 contract
Conduct of Business. From the date of this Agreement until the earlier Each Seller warrants, represents, covenants and agrees that, pending completion of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Closing, the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II unless otherwise agreed in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim PeriodParent:
(a) change or amend To the certificate of incorporationextent it is under Sellers’ reasonable control, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) Sellers shall maintain the Business as it is presently conducted and as it is proposed to be conducted in the case of the Company, for any such change future and shall not take or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required permit to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge taken or otherwise encumber, abandon, cancel do or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation suffer to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan be done anything other than in the ordinary course of business with respect the Business as the same is presently being conducted;
(b) Before November 17, 2003, the Sellers shall not sell, distribute, license, contract, commit or otherwise encumber the Assets or the Business and shall not make any capital or material equipment expenditure not committed prior to annual renewalsthe date of this Agreement;
(c) Before November 17, (iii) grant 2003, the Sellers shall not enter into, amend, modify or provide terminate any material bonusagreement to which any Seller is a party and which in any way relates to the Assets or the Business;
(d) Except as may be requested by the Parent pursuant to Section 4.8.2, severance the Sellers shall not enter into, amend, modify or termination payments terminate any employment or compensation agreement with, or increase or otherwise change any compensation or benefits payable or to become payable by any employee Seller to, any director, employee, agent or director consultant of the Company any Seller who is employed by or its Subsidiaries, except providing service to such Seller in connection with the promotionBusiness;
(e) To the extent it is within their reasonable control, hiring or firing the Sellers and their officers and employees shall use their best efforts to preserve the business organization, including, retaining all of the Transferred Employees, and to preserve for the Buyers the goodwill of any employee (Persons having any business relationship with any Seller which relates to the extent permitted by clause (iv) of this paragraph) in Assets or the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company Business or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practiceportion thereof;
(f) (iThe Sellers shall take any actions listed on Schedule 3.1.17(i) fail that are required to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation be taken prior to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);Closing Date.
(g) make any capital expenditures (or commitment The Sellers shall take all actions reasonably necessary to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after consummate the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.
Appears in 1 contract
Conduct of Business. From the date of this Agreement until the earlier of the Closing Date and or the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company Markmore shall, and shall cause its Subsidiaries to, except as expressly contemplated required by this Agreement, as required by applicable Law Law, contemplated by the PubCo Reorganization, set forth in the COG Disclosure Letter or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing by Liberty (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially its reasonable efforts to (i) conduct and operate its business Business in the ordinary course of business consistent with past practicepractice (including, including for the avoidance of doubt, recent past practice in light of COVID-19 Measures; provided that, any action taken, or omitted to be taken, that relates to, or arises out of, COVID-19 Measures shall be deemed to be in the ordinary course of business), maintain in effect its material Oil and Gas Properties and Markmore Permits, and preserve the goodwill and present business its relationships (contractual or otherwise) with its customers, key customers and suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly required by Law, required by this Agreement, contemplated by this Agreement (including the amendment of the terms of the CCPS substantially PubCo Reorganization, set forth in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, COG Disclosure Letter or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing by Liberty (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company Markmore Parties shall not, and the Company Markmore shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents Governing Documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementMarkmore Parties;
(b) (i) issue, deliver, sell, transfer, pledge, dispose of or place any Lien (other than a Permitted Lien) on any shares of capital stock or any other equity or voting securities of any of the Markmore Parties or any of Markmore’s Subsidiaries, or (ii) issue, grant or agree to provide any options, warrants or other rights to purchase or obtain any shares of capital stock or any other equity or equity-based or voting securities of any of the Markmore Parties;
(c) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) makeconsistent with past practice or as required by any Markmore Benefit Plan or applicable Law, declare, set aside make any grant or pay promise of any dividend severance or distribution payable in cash, stock, property or otherwise with respect termination payment to any capital stock Person, except severance or termination payments in connection with the termination of any employee in the ordinary course of business, establish, adopt, enter into, amend in any material respect or terminate any Markmore Benefit Plan regarding equity-based grants or compensation, or any plan, agreement, program, policy, trust, fund or other equity interests arrangement that would be such type of Markmore Benefit Plan if it were in any existence as of the Company date of this Agreement, other than to amend or replace any such Markmore Benefit Plan in the ordinary course of business if the cost of providing benefits thereunder is not materially increased;
(d) other than in connection with its obligations under Section 10.03, make any change in its customary accounting principles or methods of accounting materially affecting the reported consolidated assets, liabilities or results of operations of Markmore and its Subsidiaries, other than as may be required by applicable Law, IFRS or regulatory guidelines;
(e) adopt or enter into a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or reorganization of Markmore or its Subsidiaries;
(f) directly or indirectly acquire by merging or consolidating with, (ii) effect or by purchasing substantially all of the assets of, or by purchasing all of or a substantial equity securities in, or by any recapitalizationother manner, reclassificationany business or any corporation, split partnership, limited liability company, joint venture, association or other change entity or Person or division thereof, in their capitalizationeach case, (iii) authorize for issuancethat would be material to Markmore and the Subsidiaries, issuetaken as a whole, sell, transfer (and other than transfers in the ordinary course of Company Stock held by former employees business;
(g) issue any debt securities, or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person for Indebtedness in excess of $5,000,000.00 in the Company aggregate, except, in each case, in the ordinary course of business consistent with past practice, and, as to Indebtedness, except as between or among Markmore and its Subsidiaries;
(h) enter into any agreement that materially restricts the ability of Markmore or its Subsidiaries to existing employees)engage or compete in any line of business or enter into a new line of business, pledgeexcept where such restriction does not, encumberand would not be reasonably likely to, dispose of individually or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stockin the aggregate, materially and adversely affect, or issuematerially disrupt, sellthe ordinary course operation of the businesses of Markmore and its Subsidiaries, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity intereststaken as a whole;
(ci) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type collective bargaining or similar agreement, other than as required to be listed on Schedule 4.13(a)by applicable Law;
(dj) sell, transfer, lease, pledge take any action reasonably likely to impede the Intended Income Tax Treatment;
(k) take or otherwise encumber, abandon, cancel or convey or dispose of omit to take any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 action that would result in the aggregatecondition set forth in the COG Disclosure Letter failing to be satisfied at the Closing;
(l) enter into, modify in any material respect or terminate any Contract that is (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation or would be if entered into prior to the Company’s Subsidiariesdate of this Agreement) a Material Contract or Lease, other than in the ordinary course of business and consistent with past practice or as required by Law;
(vm) sell, assign, transfer, convey, lease, exclusively license, abandon, allow to lapse or expire, subject to or grant any Lien (other than Permitted Liens) on, or otherwise dispose of, any material assets, rights or properties (including material Owned Intellectual Property) of Markmore, other than (A) equipment deemed by Markmore in its reasonable business judgment to be obsolete or not worth the creation costs of maintaining or registering the item, (B) nonexclusive licenses granted by Markmore or any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business, or (C) transactions among Markmore and its Subsidiaries or among its Subsidiaries;
(en) except as otherwise required by Law settle any pending or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, threatened Action (i1) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted such settlement includes an agreement to accept or concede injunctive relief restricting Markmore or a Subsidiary in a manner materially adverse to Markmore or a Subsidiary or (2) to the extent such settlement involves a Government Authority or alleged criminal wrongdoing, in each case without first notifying Liberty of its intent to do so if such prior notification is legally permissible (as determined by clause Markmore based on advice of counsel);
(ivo) of this paragraph) except in the ordinary course of business consistent with past practice, make, change or (iv) hire revoke any employee of the Company or any of its SubsidiariesTax election, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change (or request any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority to change) any accounting method or accounting period with respect to Taxes, file any amended Tax Return, settle or compromise any Tax liability or claim or assessment in respect for a refund of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, enter into any closing agreement or other binding written agreement with respect to any Tax, or enter into any Tax sharing or Tax indemnification agreement or similar agreementagreement (excluding commercial Contracts not primarily relating to Taxes);
(p) fail to maintain in full force and effect material insurance policies covering Markmore and the Subsidiaries and their respective properties, assets and businesses in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or a form and amount consistent with past practices in the aggregate, reasonably be expected a manner materially detrimental to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company Markmore and its Subsidiaries) after the Closing;
(kq) enter into any agreement that restricts the ability Related Party Transactions or amend in any material respect any existing Related Party Transactions (excluding (i) any ordinary course payments of the Company annual compensation, provision of benefits or reimbursement of expenses in respect of members or stockholders who are officers or directors of Markmore or its Subsidiaries in their capacity as an officer or director and (ii) any Contracts between Markmore or any of its Subsidiaries to engage or compete in any line of businessSubsidiaries, or enter on the one hand, and Markmore, on the other hand, that are entered into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice); or
(qr) authorize enter into any agreement, or commit or agree otherwise become obligated, to do any action prohibited under this Section 8.01. Xxxxxxxx’s undertakings in this Section 8.01 shall not apply to the release of pledges over COG’s subsoil use rights under Contract 526 granted to Export Import Bank of Malaysia under the Subsoil Use Right Pledge Agreement dated 3 April 2012.
Appears in 1 contract
Samples: Business Combination Agreement (Liberty Resources Acquisition Corp.)
Conduct of Business. From the date of this Agreement Execution Date until the earlier of the Closing Date Effective Time, Seller and the termination of this Agreement in accordance with its terms Unitholders will (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (ia) conduct and operate its business the Business in the ordinary course consistent with past practice, including of business; (b) preserve intact Seller’s corporate existence and business organization; (c) use their commercially reasonable efforts to preserve the goodwill and present business relationships (contractual or otherwise) with its all customers, suppliers, joint venture partnersSeller Employees, licensors, distributors and creditors and others having material business relationships with it them, in each case with respect to the Business; (d) make all normal repairs, maintenance and retain its current officers and other key employees and planned capital expenditures with respect to the Business; (iie) use their commercially reasonable efforts to preserve in all material respects their present properties used in or related to the operation of the Business, including the Personal Property; (f) comply in all material respects with all applicable Laws and all Material Contracts; (g) pay all Liabilities of the Business as such Liabilities become due and payable; and (h) maintain all existing Approvals and Permits applicable to it and its Subsidiaries and their respective businesses, assets and employeesthe Business. Without limiting the generality of the foregoing, and as an extension thereof, except as set forth on Schedule 6.2 or as expressly contemplated permitted by any other provision of this Agreement (including Agreement, Seller and the amendment Unitholders will not, from the Execution Date until the Effective Time, directly or indirectly, do, agree or commit to do, or take any action, or fail or omit to take any action that would result in, any of the terms following without the prior written consent of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim PeriodBuyer:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees)lease, pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assumelicense, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sellconvey, transfer, lease, pledge distribute or otherwise encumber, abandon, cancel or convey transfer or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real PropertyPurchased Assets, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries Inventory in the ordinary course of business, with comparable replacement thereof;
(eii) except fail to maintain the Purchased Assets in at least as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect good condition as they are being maintained on the date hereof;
(iii) mortgage, pledge or subject to any Encumbrance any portion of this Agreementthe Purchased Assets, other than Permitted Encumbrances;
(iiv) grant incur any Indebtedness or guarantee any Indebtedness;
(v) amend, modify, accelerate or terminate, as applicable, any Material Contract or Permit, or hold discussions with former or potential customers about a Material Contract or material new or renewed business without Buyer’s consent;
(vi) waive, release, assign, settle or compromise any material increase in compensationrights or claims, benefits or severance to any key employee material litigation or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business arbitration with respect to annual renewalsthe Business or the Purchased Assets;
(vii) disclose to any Person that is not subject to any confidentiality or non-disclosure agreement, or otherwise fail to maintain or protect the confidentiality of, any Trade Secrets of, or related to, the Business (iiiincluding source code included in the Owned Intellectual Property) or other Confidential Information;
(viii) (A) increase the compensation or benefits payable or to become payable to any Practitioner or other referral source of Seller, a Seller Employee, or any director, manager, officer or consultant of the Business, including the Unitholders; (B) grant or provide increase any material bonusrights to change in control, severance or termination payments or benefits to to, or enter into any employee change in control, employment, consulting or director severance agreement with, any Unitholder, Seller Employee, or any other Person, including any director, manager, officer or consultant of the Company Business; (C) establish, adopt, enter into, amend, modify or its Subsidiariesterminate any Plan, except in connection with the promotion, hiring or firing of any employee (to the extent permitted required by clause applicable Laws; or (ivD) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Plan;
(A) make loans or advances to, guarantees for the benefit of, or any investments in any Person or (B) cancel any Indebtedness owed to Seller or waive any claims or rights of this paragraphvalue;
(x) make any change in the accounting policies, practices, principles, methods or procedures of the Business, other than as required by GAAP or by applicable Laws;
(A) accelerate or delay collection of notes receivable or Accounts Receivable 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 consistent with past practice, business; (B) delay or (iv) hire accelerate payment of any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services account payable related to the Company Business in advance of or any of beyond its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 due date or the date such Liability would have been paid in the ordinary course of business consistent with business; (C) make any changes to the cash management policies of the Business; (D) delay or postpone the repair or maintenance of the any of the Purchased Assets; or (E) vary any inventory purchase practices of the Business in any material respect from past practicepractices;
(fxii) make any capital expenditure commitment in excess of $10,000 for additions to property, plant, equipment, intangible or capital assets of the Business or for any other purpose, other than for routine and customary repairs or replacement, the payment of which is to be made prior to the Closing Date;
(ixiii) fail to maintain its existencekeep in force the Insurance Policies or replacement or revised provisions providing insurance coverage with respect to the Purchased Assets or the Business as are currently in effect;
(xiv) take or omit to take any action that, individually or in the aggregate, could reasonably be expected to result in any representation or warranty of Seller to be untrue, result in a breach of any covenant made by Seller in this Agreement, would require disclosure pursuant to Section 6.4 or could reasonably be expected to result in any condition set forth in Article 8 not being satisfied;
(iixv) enter into a any new material line of business or make any material change in the Business or the operation of the Purchased Assets; or
(other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iiixvi) purchase or otherwise acquire (whether including by merging merger, consolidation, license or consolidating with or purchasing sublicense) any equity interest in any Person or a substantial material portion of the assets of) any or business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assetsPerson, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber acquire any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (asset other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.
Appears in 1 contract
Conduct of Business. From the date of this Agreement hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Date, the Company shall, and shall cause Seller will use its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend preserve the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementAssets;
(b) except in the ordinary course use reasonable commercial efforts to preserve and prevent any damage to, destruction or loss of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company Assets, whether or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held not such assets are covered by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestsinsurance;
(c) except as otherwise permitted take all action necessary to prevent the loss, cancellation, abandonment, forfeiture or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify expiration of any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a)Intellectual Property;
(d) sellgive to the Buyer, transferthe Buyer’s Solicitors, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business the Buyer’s advisors and other representatives of the Company or any Buyer, full access during normal business hours to management, properties, books, contracts, commitments and records of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of businessSeller;
(e) except furnish the Buyer with all information concerning the Assets as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practiceBuyer may reasonably request;
(f) promptly advise the Buyer in writing of any material change in the condition of the Assets;
(g) provide the Buyer with all information required to enable the Buyer to prepare and file all notices and applications required to be filed for the purposes of obtaining of any regulatory consent which is required in connection with the transactions contemplated herein;
(h) keep in full force and effect any insurance;
(i) fail not sell, agree to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase sell or otherwise acquire (whether by merging dispose of or consolidating with license, pledge or purchasing encumber any equity interest in or a substantial portion of the assets ofAssets;
(j) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) not sell, transfer, license, assign, fail to maintain sublicense or otherwise dispose of or encumber any Intellectual Property of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business)Seller, or (vi) adopt amend or enter into a plan of complete modify any existing agreements or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority rights with respect to Taxesany Intellectual Property of, settle or compromise used by, the Seller, and in particular in no event shall the Seller license on an exclusive basis or sell any claim or assessment in respect of material Taxes, consent to any extension or waiver Intellectual Property of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the ClosingSeller;
(k) enter into any agreement that restricts not waive the ability of the Company or any of its Subsidiaries benefits of, agree to engage or compete modify in any line manner, terminate, release any person from or knowingly fail to enforce any confidentiality or similar agreement to which the Seller is a party or of business, or enter into any agreement that restricts which the ability of the Company or any of its Subsidiaries to enter into Seller is a new line of business;beneficiary; and
(l) waivenot take, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than agree in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee writing or otherwise become liable for to take, any of the actions described in (whether directlya) through (k) above, contingently or otherwise) any action which would make any of the representations or warranties of the Seller in this Agreement untrue or incorrect in any material Indebtedness, other than Indebtedness incurred respect or prevent the Seller from performing its covenants hereunder or result in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects conditions to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01Agreement set forth herein not being satisfied.
Appears in 1 contract
Conduct of Business. From Except with the written consent of Buyer, as otherwise provided in this Agreement, as set forth in Schedule 5.01 or required by Applicable Law, or as required by the terms and conditions of Contracts either disclosed on or not required to be disclosed on Schedule B.12 ("Existing Contracts"), from the date of this Agreement until the earlier Closing Date, Parent shall cause Seller Companies and TTSI to conduct the TTS Business in all material respects in accordance with the historical and customary operating practices relating to the conduct of the TTS Business and shall use commercially reasonable best efforts to preserve intact the TTS Business and the relationships of Seller Companies and TTSI with third parties in connection with the TTS Business, and Seller Companies and TTSI shall not:
(i) make any capital expenditure, or group of related capital expenditures relating to the TTS Business in excess of $100,000 (other than capital expenditures contemplated by the 1998 capital plan previously provided to Buyer);
(ii) sell or dispose of more than an aggregate of $250,000 of assets that would constitute Contributed Assets or Transferred Intellectual Property if owned, held or used by TTSI on the Closing Date and (other than the termination sale of this Agreement in accordance with its terms Inventory (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law including obsolete Inventory whether or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtednessbusiness), as required by applicable Law or pursuant to and any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment sale made in the ordinary course of business and which business);
(iii) notwithstanding Section 5.01(ii), sell, transfer, license or otherwise dispose of, any Transferred Intellectual Property (except for certain Intellectual Property with registrations that will expire in the normal course that will not have an material adverse impact on constitute Transferred Intellectual Property, the Company’s ability to perform its obligations under this Agreement license or to consummate sale of Intellectual Property in connection with the Transactions, (ii) in the case Shaft Lab product line or other licenses of the Company’s Subsidiaries, for any such change or amendment made Intellectual Property granted in the ordinary course of business or which do not materially deplete the value of such Intellectual Property prior to Closing);
(iiiiv) except as expressly contemplated by this Agreement, amend, modify or supplement TTSI's Certificate of Incorporation or bylaws;
(bv) except in the ordinary course issue any shares of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock of TTSI or any options, warrants or other equity interests in rights to acquire any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock of TTSI or securities convertible into or exchangeable for shares of their TTSI capital stock, except as contemplated by Section 2.01;
(vi) incur any indebtedness for money borrowed, other than the debt financing contemplated by Section 2.02 or issueintercompany indebtedness with another Seller Company cancelled at or prior to Closing;
(vii) terminate or materially reduce the coverage of any policies of title, sellliability, transferfire, pledgeworkers' compensation, encumber property and any other form of insurance covering the operations of TTSI or grant the TTS Business other than any righttermination or reduction of any insurance covering Parent's businesses generally or where such policies are replaced by policies that are substantially similar in all material respects to the terminated policies;
(viii) settle any material lawsuit, option claim or other commitment for material dispute nor settle any other lawsuit, claim or other dispute if such settlement imposes a material continuing non-monetary obligation on TTSI or the issuance TTS Business or any of shares of their capital stock, the Contributed Assets or split, combine Transferred Intellectual Property or reclassify any shares of their capital stock (except in each case in relation material monetary obligation that will not be satisfied prior to the repaymentClosing or due and payable on or before the one year anniversary of the Closing Date;
(ix) except as would not otherwise be prohibited by Section 5.01(x) below and except as would not constitute an Assumed Liability, prepayment grant or refinancing of implement any new or modified severance, termination or other employee benefit or compensation arrangement or increase or accelerate any benefits payable under the enforcement of severance or termination pay policies or other employee benefit or compensation arrangement with respect to any security Transferred Employee; or
(x) except as otherwise may be permitted or required by this Agreement or Applicable Law and except as would not constitute an Assumed Liability, adopt or amend in any material respect any Employee Plan or Benefit Arrangement in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its SubsidiariesTransferred Employee or, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, increases in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;Transferred Employee whose base compensation is $75,000 or above of TTSI or the TTS Business, as the case may be, increase the compensation or fringe benefits of any such Transferred Employee or pay any benefit not required by any Employee Plan or Benefit Arrangement with respect to such Transferred Employee as in effect on the date hereof.
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(oxi) fail to maintainkeep the equipment, cancel or materially change coverage under any insurance policy machinery and systems used in form and amount equivalent the TTS Business in compliance, in all material respects to respects, with all Applicable Laws and with all licenses and permits, and reasonably maintain all such assets and replace any thereof which shall be worn out, lost, stolen, or destroyed, in accordance with past practices (other than assets that are no longer necessary for the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as operation of the date hereofTTS Business);
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.
Appears in 1 contract
Samples: Reorganization, Recapitalization and Stock Purchase Agreement (True Temper Sports Inc)
Conduct of Business. From of the Company and the Company -------------------------------------------------- Subsidiaries. Between the date of this Agreement until and the ------------ earlier of the Closing Date and Effective Time or the termination of date this Agreement is terminated in accordance with its terms (the “Interim Period”)terms, the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim PeriodSavings agree:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of That the Company or and the Company Subsidiaries shall conduct their business only in the ordinary course, and maintain their books and records in accordance with past practices and not to take any of its Subsidiaries except action that would materially (i) in adversely affect the case of ability to obtain the Governmental Approvals or (ii) adversely affect the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s 's ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in That the ordinary course Company shall not, without the prior written consent of business in relation to the Company’s Subsidiaries Patapsco: (i) make, declare, set aside or pay any dividend or make any other distribution payable in cash, stock, property or otherwise with respect to Company's capital stock, except for the declaration and payment of regular semi-annual cash dividends of $0.10 per share in accordance with past practice, provided that the Company shall not declare or pay any dividend following the date on which all Governmental Approvals, other than the expiration of the 15-day waiting period required under the regulations of the DOJ, shall have been obtained; (ii) reacquire any of Company's outstanding shares of capital stock; (iii) issue or sell or buy any shares of capital stock or other equity interests in any of the Company or its Subsidiaries, any Company Subsidiary; (iiiv) effect any recapitalizationstock split, reclassification, split stock dividend or other change in their capitalization, reclassification of Company's Common Stock; or (iiiv) authorize grant any options or issue any warrants exercisable for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares into capital stock of their capital stock, Company or issue, sell, transfer, pledge, encumber any Company Subsidiary or grant any right, option stock appreciation or other commitment for the issuance of rights with respect to shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment of Company or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestsSubsidiary;
(c) except Except as otherwise permitted or not restricted contemplated by this Section 8.01 enter intoAgreement, assumeas required by law or as described in Schedule I, assignthat Company and the Company Subsidiaries shall not, partially or completely amend or modify any material term without the prior written consent of or terminate Patapsco: (excluding any expiration in accordance with its termsi) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey sell or dispose of any assets, properties or business significant assets of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or Subsidiary other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice practices; (ii) adoptmerge or consolidate the Company or any Company Subsidiary with or otherwise acquire any other entity, or file any applications or make any contract with respect to branching by Savings (whether de novo, purchase, sale or relocation, including the proposed new Harford County branch office previously under consideration) or acquire or construct, or enter into any agreement to acquire or materially amend construct, any interest in real property (other than with respect to security interests in properties securing loans and properties acquired in settlement of loans in the ordinary course) or improvements to real property except as provided in this Agreement; (iii) change the articles of incorporation, charter documents or other governing instruments of the Company or any Company Subsidiary, except as provided in this Agreement; (iv) grant to any executive officer, director or employee of the Company or any Company Subsidiary any increase in annual compensation, any award under any Employee Plan or Benefit Plan other than Arrangement or any bonus type payment except increases in compensation, bonus or benefits in the ordinary course of business to non-officer employees; (v) adopt any new or amend (except for any amendments required by law) or terminate any existing Employee Plans or Benefit Arrangements of any type except as contemplated herein and in compliance with respect applicable law or make any payment or contribution to annual renewalsany Employee Plans or Benefit Arrangements except for the Employee Plans or Benefit Arrangements set forth in Section 2.13 of Schedule I; (vi) authorize severance pay or other benefits for any officer, director or employee of Company or any Company Subsidiary; (iiivii) grant or provide incur any material bonusindebtedness or obligation or enter into or extend or amend any material agreement or lease, severance which cannot be canceled upon one month notice or termination which involves annual payments or benefits to any employee or director in excess of the Company or its Subsidiaries$5,000, except that Savings may obtain FHLB advances for the purposes of maintaining liquidity or funding loan demand, with such advances not to exceed an aggregate outstanding amount of $1.0 million at any given time; (viii) engage in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) lending activities other than in the ordinary course of business consistent with past practicepractices; (ix) form any new subsidiary or cause or permit a material change in the activities presently conducted by any Company Subsidiary or make additional investments in subsidiaries; (x) purchase any investments or debt securities, except that Company and the Company Subsidiaries may purchase federal funds or (iv) hire make overnight deposits with the Federal Home Loan Bank of Atlanta and may purchase securities pursuant to any employee contractual obligation in existence as of the Company or date of this Agreement, all of which contractual obligations are set forth in Section 4.2(c) of Schedule I hereto; (xi) purchase any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, equity securities other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
Federal Home Loan Bank stock; (f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (ivxii) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation investment which would cause Savings not to the Company’s Subsidiaries), (vbe a qualified thrift lender under Section 10(m) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets HOLA, or material Intellectual Property pertaining not to the business be a "domestic building and loan association" as defined in Section 7701(a)(19) of the Company or any of its Subsidiaries with a value in excess of $1,000,000 Code; (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(gxiii) make any capital expenditures (loan, except that Company or commitment to make any capital expenditures) in excess a Company Subsidiary may, without the prior written consent of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s SubsidiariesPatapsco, in the ordinary course of business consistent with past practice or between practices, make (A) single-family residential mortgage loans and construction loans with principal balances of no more than $252,700, (B) any other loans secured by real estate with principal balances of no more than $50,000, except that Savings may without the Company and its Subsidiaries;
(i) amend in prior written consent of Patapsco purchase a manner materially detrimental participation interest a loan to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from be secured by a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiariesproperty located at 00000-0 Xxxxxx Xxx Xxxx, or otherwise terminate its relationships with (C) any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
unsecured loans of no more than $25,000; (jxiv) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, authorize capital expenditures other than in the ordinary course of business or that otherwise do not exceed in excess of $10,000,000 5,000 in the aggregate;
; or (mxv) (i) incuradopt or implement any change in its accounting principles, guarantee practices or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, methods other than Indebtedness incurred as may be required by generally accepted accounting principles or by a regulatory authority or adopt or implement any change in its methods of accounting for Federal income tax purposes. The limitations contained in this Section 4.2(c) shall also be deemed to constitute limitations as to the ordinary course making of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement commitment with respect to any outstanding material Indebtedness;of the matters set forth in this Section 4.2(c). Notwithstanding the foregoing, Savings may engage in any of the foregoing activities exclusively with the Bank.
(nd) make any change in financial accounting methodsFrom and after the date of this Agreement, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiariesand Savings, except insofar as may have been required by a change on the one hand, and Patapsco and the Bank, on the other hand, shall in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained good faith coordinate policies with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01respective investment securities portfolios.
Appears in 1 contract
Conduct of Business. From Except as otherwise set forth on Section 6.01 of the Schedules, as required by Law, as permitted or required by this Agreement or with the prior written consent of Purchaser, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement until to the earlier of the Closing Date and the termination of date on which this Agreement is terminated in accordance with its terms (the “Interim Period”)Article VIII, the Company shall, and the Company shall cause its Subsidiaries each Subsidiary to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), a) use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent Ordinary Course of Business, (b) use commercially reasonable efforts to maintain their respective properties and assets and preserve their current relationships with past practicecustomers, including employees, suppliers and others having business dealings with them, (c) maintain their books and records in the Ordinary Course of Business, and (d) use commercially reasonable efforts to preserve the goodwill and present ongoing operations of the business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it of the Company and its Subsidiaries and their respective businesses, assets and employeesSubsidiaries. Without limiting the generality of the foregoing, and except as expressly contemplated by this Agreement (including the amendment otherwise set forth on Section 6.01 of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness)Schedules, as required by applicable Law or pursuant to any COVID-19 Measures applicable to as permitted or required by this Agreement, during the Company period from the date of this Agreement through the earlier of the Closing Date and its Subsidiaries or as consented to by RMG II the date on which this Agreement is terminated in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied)accordance with Article VIII, the Company shall not, and the Company shall cause its Subsidiaries each Subsidiary not to, during without the Interim Periodprior written consent of Purchaser, which consent shall not be unreasonably withheld, delayed or conditioned:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents Organizational Documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementSubsidiary;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) makealter through merger, declareliquidation, set aside reorganization, restructuring or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of other fashion the Company corporate structure or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee ownership of the Company or any of its Subsidiaries, or create or form any Subsidiary or adopt a plan or agreement of complete or partial bankruptcy, liquidation, dissolution, restructuring, merger, consolidation, recapitalization, reorganization or the like;
(c) issue, reissue, sell, dispose of or pledge, or authorize or propose the issuance, reissuance, sale, disposition or pledge of, any equity securities, including shares of capital stock of any class or series, or any securities convertible into capital stock of any class or series (other individual who is providing than upon exercise or will provide services settlement of Options outstanding on the date of this Agreement) of the Company or any Subsidiary, or grant or enter into, or authorize the granting or entering into of, any rights, warrants, options, Contracts or commitments with respect to the issuance of such equity securities or capital stock or convertible securities or amend any terms of any such right, warrant, option, Contract or commitment;
(d) declare, set aside or pay any dividend or other distribution of assets in respect of any class or series of its equity securities or capital stock, in each case, other than dividends and distributions by a Subsidiary to the Company or another Subsidiary of the Company;
(e) adjust, split, combine, redeem, subdivide, reclassify, shares of its capital stock, as the case may be, or any option, warrant, convertible security or right relating thereto;
(i) except in the Ordinary Course of Business and in an amount not to exceed $100,000 in the aggregate, sell, lease, transfer, license, sublicense or otherwise dispose of or assign any of its personal properties, assets or rights, other than (A) sales, leases, or licenses or other dispositions of Company Products or inventory in the Ordinary Course of Business, or (B) disposition of obsolete equipment, scrap and similar items in the Ordinary Course of Business; (ii) permit, allow or suffer any of its personal properties or assets to be subjected to any Lien, other than Permitted Liens; (iii) acquire any personal properties or assets in an amount in excess of $100,000 in the aggregate, other than acquisitions in the Ordinary Course of Business; or (iv) lease any material personal property, other than renewals of existing leases in the Ordinary Course of Business;
(g) create, incur, assume or guarantee any Indebtedness, except pursuant to existing Contractual Obligations set forth in Section 4.23;
(h) cancel or compromise any material liability owing to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(fi) change any of the Accounting Policies, tax principles, practices or methods, or any material financial reporting principles, practices or methods, in each case, used by the Company or any Subsidiary, except as may be required in order to comply with changes in GAAP or applicable Law, including Tax Laws;
(j) acquire (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with with, or by purchasing any equity interest in all or a substantial portion of the assets or equity securities of) , or by any business or other manner, any corporation, business or division thereof, partnership, association, joint venture or other business organization Person, or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (ivii) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the asset which is material assets or material Intellectual Property pertaining to the business of the Company and its Subsidiaries;
(k) make or authorize any capital expenditures, commitment for capital expenditures or capital expenditures, other than such expenditures or commitments in the Ordinary Course of its Subsidiaries with a value Business and not in excess of $1,000,000 (other than 500,000, individually or in the ordinary course aggregate;
(i) make (outside of businessthe Ordinary Course of Business), change or revoke any material Tax election, (ii) elect or change any method of accounting for Tax purposes or Tax accounting period, (iii) file any material Tax Return in a manner inconsistent with past practice or amend any Tax Return, (iv) surrender any right to, or file any claim for, a Tax refund, (v) settle any audit proceeding in respect of Taxes, or (vi) adopt or enter into any Contract or agreement in respect of Taxes with any Governmental Authority, including an extension or waiver of an applicable statute of limitations for any Tax claim or assessment;
(m) adopt, materially amend or terminate any Plan (or arrangement that would be a plan Plan if in effect on the date hereof), except as required by applicable Law or the terms of complete any Plan or partial liquidationfor annual renewals in the Ordinary Course of Business, dissolutionand excluding any transaction, merger, consolidation, restructuring, recapitalization change in control and/or retention bonuses borne solely by Equityholders and constituting a Company Transaction Expense;
(n) materially increase the compensation or other reorganization benefits payable to any employee of the Company or any of its Subsidiaries Subsidiary with a base salary that exceeds $100,000 (prior to giving effect to such increase), other than (i) in the MergerOrdinary Course of Business (including, for the avoidance of doubt, standard annual compensation increases and annual bonuses), or (ii) as required by applicable Law or the terms of any Plan or Contract;
(go) make enter into any agreement or Contract with a labor union or other employee representative body;
(p) manage its working capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 a manner that is not in the aggregate) other than any capital expenditure (or series Ordinary Course of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects Business with the Company’s annual capital expenditure budget for intent of increasing the periods following Closing Net Working Capital;
(q) enter into, renew (except in accordance with the terms thereof), transfer or assign, amend or modify in any material respect, terminate, or grant any release, waiver or relinquishment of any material right under, any Material Contract or any contract that, if entered into as of or prior to the date hereof, would constitute a Material Contract;
(hr) make any loans, advances advances, or capital contributions to, or investments in, any other Person, other thanthan by the Company to any of its Subsidiaries or travel advances to employees in the Ordinary Course of Business;
(s) sell, transfer, lease, license, encumber or subject to any Lien (other than Permitted Liens), or otherwise dispose of, any Owned Real Property;
(t) acquire any real property;
(u) enter into any lease for real property, or amend, modify, transfer or assign any Lease;
(v) terminate, cancel or otherwise fail to renew, or reduce the amount of any insurance coverage under, any Insurance Policy (if such insurance policy is not replaced with a substantially equivalent insurance policy);
(w) terminate, amend or modify, or fail to renew or preserve any material Permit;
(x) compromise, settle or otherwise commence any Proceeding; or
(y) abandon, cancel, permit to lapse, dedicate to the public, fail to renew, fail to protect or enforce, transfer, assign, or license any of its material Intellectual Property (other than the grant of non-exclusive licenses in relation the Ordinary Course of Business); or
(z) authorize, or enter into any Contractual Obligation to do any of the foregoing. Notwithstanding the foregoing, (i) nothing contained in this Agreement is intended to give Purchaser or Merger Sub, directly or indirectly, the right to control the Company’s or its Subsidiaries’ operations prior to the Effective Time, in (ii) the ordinary course failure of business consistent with past practice or between the Company and its Subsidiaries;
to take or cause to be taken an action prohibited by this Section 6.01 shall in no event be deemed to constitute a breach of the first sentence of Section 6.01, (iiii) amend in a manner materially detrimental no consent of Purchaser or Merger Sub shall be required with respect to any matter contemplated by this Agreement to the extent that the requirement of such consent would violate applicable Law, (iv) any action taken, or omitted to be taken, by the Company or any of its SubsidiariesSubsidiaries to the extent required by any Law or any directive, terminatepronouncement, cancelorder, surrender, permit to lapse restrictions or fail to renew or maintain any material authorization from guideline issued by a Governmental Authority that relates to, or material Permit required for arises out of, any pandemic (including COVID-19 or any variants or mutations thereof), epidemic or disease outbreak shall in no event be deemed to constitute a breach of this Section 6.01, and (v) during the conduct period from the date of this Agreement until 5:00 p.m. Eastern Time on the business day immediately prior to the Closing Date, the Company shall be permitted to utilize any and all available Cash to (A) pay any expenses or bonus that would otherwise constitute Company Transaction Expenses, (B) repay outstanding Indebtedness, in each case, at such times and in such amounts as the Company deems necessary, proper or desirable or (C) make cash distributions or dividends (including cash distributions in redemption of any equity interest of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation ). Prior to the Company’s SubsidiariesEffective Time, in the ordinary course each of businessPurchaser, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo Merger Sub and its Affiliates (including the Company shall exercise complete control and supervision of its and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01’ respective operations.
Appears in 1 contract
Samples: Merger Agreement (Compass Group Diversified Holdings LLC)
Conduct of Business. From the date of this Agreement until hereof through the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Closing, Seller shall use commercially reasonable efforts to cause the Company shall, and shall cause each of its Subsidiaries toSubsidiaries, except as expressly may be necessary to effect the Preliminary Transactions and except as otherwise contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries Agreement or as consented to by RMG II Purchaser in writing (which consent will not be unreasonably withheld), to operate its business in the ordinary course and substantially in accordance with past practice and use commercially reasonable efforts not to take any action inconsistent with this Agreement. Without limiting the generality of the foregoing, unless consented to by Purchaser in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to Seller shall cause the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause each of its Subsidiaries not to, during the Interim Periodexcept as contemplated by this Agreement:
(a) change or amend the certificate its Certificate of incorporationIncorporation, bylaws Bylaws or other organizational documents of the Company or any of its Subsidiaries documents, except as otherwise required by law;
(i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assumeextend, assignmaterially modify, partially terminate or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) renew any Contract of a type required to be listed on Schedule 4.13(a)2.8, except in the ordinary course of business, or (ii) settle or otherwise resolve any financial issue, claim or adjustment under any such Contract;
(c) sell, assign, transfer, convey, lease or otherwise dispose of any material assets or properties, except in the ordinary course of business;
(d) sellexcept as otherwise required by law, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose take any action with respect to the grant of any assets, properties severance or business termination pay (otherwise than pursuant to policies or agreements of the Company or any of its Subsidiaries in effect on the date hereof) which will become due and payable from the Company or any of its Subsidiaries on or after the Closing Date; make any change in the key management structure of the Company or any of its Subsidiaries, including Real Propertyincluding, except for saleswithout limitation, transfers, leases, pledges or other encumbrances or dispositions the hiring of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries additional officers or the Company to secure Indebtedness incurred by the Company or its Subsidiaries terminations of existing officers, other than in the ordinary course of business;
(e) except as otherwise required acquire by Law merger or existing Company Benefit Plansconsolidation with, policies or Contracts merge or consolidate with, or purchase substantially all of the Company assets of, or its Subsidiaries, in effect on the date of this Agreement, (i) grant otherwise acquire any material increase in compensationassets or business of any corporation, benefits partnership, association or severance other business organization or division thereof;
(f) make any material loans or advances to any key employee partnership, firm or manager corporation, or, except for expenses incurred in the ordinary course of business, any individual;
(g) amend any Employee Plan or increase the salary of any management Employee, except in the ordinary course of business;
(h) alter in any material respect the past practices of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant the collection of receivables or provide any material bonus, severance or termination payments or benefits to any employee or director payment of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;payables; or
(i) amend in a manner materially detrimental to the Company or enter into any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiariesagreement, or otherwise terminate its relationships with any Governmental Authoritybecome obligated, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Chancellor Media Corp of Los Angeles)
Conduct of Business. From the date of this Agreement until the earlier of hereof through the Closing Date and except as otherwise set forth on the termination of this Agreement in accordance with its terms Disclosure Schedule, Sellers (the “Interim Period”), the Company i) shall, and shall cause its Subsidiaries the Entities to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to operate the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business Business in the ordinary course consistent of business and in accordance with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply will not take, and will cause the Entities not to take, any action inconsistent with this Agreement or with the consummation of the Closing without first consulting in all material respects good faith with all Laws applicable Buyer concerning the action proposed to it and its Subsidiaries and their respective businesses, assets and employeesbe taken. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent Sellers shall not be unreasonably conditioned, withheld, delayed amend their respective certificates or denied), articles of incorporation or bylaws in a manner that would adversely affect the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate ability of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or Sellers to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly transactions contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stockhereby, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transferconvey, lease, mortgage, pledge or otherwise encumber, abandon, cancel or convey encumber or dispose of any assets, properties or business of the Company Assets or any interests therein, other than the sale of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s SubsidiariesServicetrends Inventory, in the ordinary course of business and consistent with past practice practice, and will cause the Entities not to do any of the following:
(a) change or (v) the creation amend its certificate of any pledgeincorporation, encumbrance bylaws or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of businessPartnership Agreement;
(eb) except as otherwise required by Law enter into, extend, materially modify, terminate or existing Company Benefit Plans, policies renew any Contract or Contracts of Lease relating to the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000Business, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business Business and consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (vc) sell, assign, transfer, licenseconvey, assignlease, fail to maintain mortgage, pledge or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company Assets, or any of its Subsidiaries with a value in excess of $1,000,000 (other than interests therein, except in the ordinary course of business)business and consistent with past practice;
(d) incur any Liability for Funded Debt or, except in the ordinary course of business and consistent with past practice, incur any other Liability other than Excluded Liabilities;
(i) take any action with respect to the grant of any bonus, severance or termination pay (vi) adopt otherwise than pursuant to policies or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization agreements of the Company Entity in effect on the date hereof that are described on the Disclosure Schedule) or with respect to any increase of benefits payable under its Subsidiaries severance or termination pay policies or agreements in effect on the date hereof or increase in any manner the compensation or fringe benefits of any employee (other than as may be required pursuant to the Mergerterms of an existing Contract, which requirement and terms are described in the Disclosure Schedule) or pay any benefit not required by any existing Employee Plan or policy;
(ii) make any change in its management structure, except as a result of a voluntary departure by management personnel;
(iii) adopt, enter into or amend any Employee Plan, agreement (including, without limitation, any employment agreement), trust, fund or other arrangement for the benefit or welfare of any employee, except for any such amendment as may be required to comply with applicable Regulations or would constitute Excluded Liabilities; or
(f) acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all of the assets of, or otherwise acquire any material assets or business of any corporation, partnership, association or other business organization or division thereof;
(g) declare, set aside, make or pay any dividend or other distribution to, or make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually other payment for any project (reason to shareholders or set partners of related projects) any of the Sellers or $5,000,000 any Affiliate of any of such shareholders or partners or of the Sellers or Entities, except for cash distributions made in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is a manner consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereofpast practice;
(h) make willingly allow or permit to be done, any loansact by which any of the Insurance Policies may be suspended, advances impaired or capital contributions tocanceled;
(i) (i) fail to pay its accounts payable and any debts owed or obligations due, or investments in, pay or discharge when due any other Person, other than, in relation to the Company’s SubsidiariesLiabilities, in the ordinary course of business consistent with past practice other than accounts payable or between debts that are the Company subject of good faith disputes and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, appropriate reserves are established in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practicestatements; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.
Appears in 1 contract
Conduct of Business. From During the period from the date of this Agreement and continuing until the earlier of the Closing Date and the termination of this Agreement or the Closing Date, Seller agrees to continue to operate the Business in accordance with the usual and ordinary course. The Seller shall use its terms (best efforts to preserve intact the “Interim Period”)business organization, the Company shallAcquired Assets and the goodwill of the Seller and its employees, customers, suppliers and others having business relations with the Seller with respect to the Acquired Assets. Seller agrees that it will (except to the extent that Buyer shall otherwise consent in writing) carry on the Business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, and, to the extent consistent with the Business, use all reasonable efforts consistent with past practice and policies to preserve intact Seller's present business organizations, keep available the services of its present officers and key employees and preserve their relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Acquired Assets, including without limitation, goodwill of the Business at the Closing Date. Seller shall cause its Subsidiaries topromptly notify Buyer of any event or occurrence or emergency not in the ordinary course of business, except and any event that could have a Material Adverse Effect. Except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to without the Company and its Subsidiaries or as consented to by RMG II in writing (prior written consent of Buyer, which consent shall not and be unreasonably conditionedwithheld or delayed, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company Seller shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice practice, do any of the following related to the Business:
(iia) adoptEnter into any commitment, enter into contract, lease or materially amend any Company Benefit Plan other than transaction not in the ordinary course of business business;
(b) Enter into or amend any agreements pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practiceAcquired Assets;
(fc) Amend or otherwise modify (i) fail or agree to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businessesdo so), or violate the terms of the agreements set forth or described in any of the schedules hereto;
(iiid) purchase Commence any litigation;
(e) Acquire or otherwise agree to acquire (whether by merging or consolidating with with, or by purchasing any equity interest in or a substantial portion of the assets of) , or by any other manner, any business or any corporation, partnership, association, joint venture association or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiariesthereof, or otherwise terminate its relationships with acquire or agree to acquire any Governmental Authority, customers, suppliers, contractors and other Persons with assets which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action couldare material, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(kf) enter into Sell, lease, license or otherwise encumber, dispose of or transfer, or commit to encumber, dispose of or transfer, any agreement that restricts the ability of the Company or rights to any of its Subsidiaries to engage properties or compete in the Acquired Assets;
(g) Adopt or amend any line of businessemployee benefit plan, or enter into any agreement that restricts employment contract, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the ability of the Company salaries or any wage rates of its Subsidiaries to enter into a new line of businessemployees;
(lh) waive, release, compromise, settle Enter into any strategic alliance or satisfy any pending joint marketing arrangement or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregateagreement;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) Enter into any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any license agreement with respect to any outstanding material Indebtednessintellectual property of any third party for the purpose of its use with the Intellectual Property;
(nj) make Hire or fire any change employees; or
(k) Agree in financial accounting methods, principles writing or practices materially affecting the reported consolidated assets, liabilities or results of operations otherwise to take any of the Company actions described in Sections 4.1(a) through (j) above, or take (or agree in writing to take) any other action that would cause any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS the representations or GAAP;
(o) fail warranties of Seller contained herein not to maintain, cancel or materially change coverage under any insurance policy in form be true and amount equivalent correct in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties on and as of the date hereof;
(p) fail in a material manner Closing Date or prevent Seller from performing or cause Seller not to manage perform its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01covenants hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Alliance Pharmaceutical Corp)
Conduct of Business. From During the period from the date of this Agreement until to the earlier Closing Date, except (i) as set forth in Section 7.2 of the Closing Date and Seller’s Xxxxxxxxxx Xxxxxxxx, (xx) as provided in the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except Reorganization or as expressly otherwise contemplated by this AgreementAgreement or, (iii) as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II Buyers shall otherwise consent in advance in writing (which such consent shall not to be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), use commercially reasonable efforts ASD agrees that it will, and will cause each of the B&K Companies, any of their Subsidiaries and Asset Sellers (in respect of the B&K Business) to (iw) conduct and operate its business the B&K Business in all material respects in the ordinary course consistent with past practice, including (x) preserve intact the B&K Business in all material respects, and (y) use commercially reasonable efforts to preserve intact, in all material respects, the goodwill ordinary and present business customary relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors suppliers and creditors and others other third parties having material business relationships with it and retain its current officers and other key employees and it. During the period from the date of this Agreement to the Closing Date, except (i) as set forth in Section 7.2 of the Seller’s Disclosure Schedule, (ii) comply as Buyers shall otherwise consent in all material respects with all Laws applicable advance in writing (such consent not to it and its Subsidiaries and their respective businessesbe unreasonably withheld, assets and employees. Without limiting conditioned or delayed), (iii) as provided in the generality of the foregoing, except Reorganization or as expressly otherwise contemplated by this Agreement Agreement, and (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), iv) as required by applicable Law or pursuant to any COVID-19 Measures applicable Law, ASD covenants and agrees that it shall cause the B&K Companies, their Subsidiaries and the Sellers, in each case solely with respect to the Company and its Subsidiaries or as consented B&K Business, not to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), take any of the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Periodfollowing actions:
(a) change or amend the certificate of incorporationcharter, bylaws or other similar organizational documents of the any B&K Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s their Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock B&K Company or other equity interests in any of the Company or its their Subsidiaries, (ii) effect any recapitalization, reclassification, split issue or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries agree to existing employees), pledge, encumber, dispose of or deliver issue any additional shares of their capital stock (other than shares to be transferred to any Designated Buyers at the Closing), or issue or agree to issue any other equity interests or securities convertible into or exchangeable for or exercisable for, or options with respect to, or warrants to purchase or rights to subscribe for, shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by B&K Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s their Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain transfer or otherwise dispose of or encumber any shares of the material assets or material Intellectual Property pertaining to the business capital stock of the any B&K Company or any of its Subsidiaries their Subsidiaries;
(c) with a value respect to any B&K Company or any of their Subsidiaries, declare, set aside, or pay any dividend or other distribution payable in excess of $1,000,000 stock or property (other than in the ordinary course Excluded Assets) with respect to its capital stock or other equity interests therein;
(d) with respect to any B&K Company or any of business)their Subsidiaries, or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization recapitalization, bankruptcy, suspension of payments or other reorganization under local Law;
(e) acquire or dispose of, in any manner including any business combination, any business or substantially all of the Company assets of any business or Person which are material, individually or in the aggregate, to the B&K Business taken as a whole (it being understood that nothing in this Section 7.2 shall limit any of the Sellers’ or their respective Affiliates’ rights with respect to the Excluded Businesses);
(f) except as required by Law, permit any B&K Company, any of their Subsidiaries or any Asset Seller in respect of its Subsidiaries (the B&K Business to issue any material note, bond, or other debt security, or create, incur, assume or guarantee any Indebtedness in excess of $10,000,000, in each case, other than the Merger)(i) current liabilities, (ii) Indebtedness that will not be an Assumed Liability and (iii) intercompany loans or advances;
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess except for sales of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, inventory in the ordinary course of business consistent with past practice practice, sell, transfer, license, abandon or between otherwise dispose of, or incur, create or assume any Encumbrance, other than Permitted Encumbrances, with respect to any Assets of the Company and B&K Business having individually or in the aggregate a value in excess of $5,000,000;
(h) change any financial accounting method used by it relating to the B&K Business, unless required by GAAP, Law or recommended by independent auditors or consistent with changes made by ASD in respect of its SubsidiariesExcluded Businesses;
(i) amend in a manner materially detrimental to the Company enter into or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain modify any material authorization from a Governmental Authority Benefit Plan, Employment Agreement or other employment, severance, change in control, termination or similar agreements or arrangements with, or grant any material Permit required for the conduct of the business of the Company bonuses, salary increases, severance or any of its Subsidiariestermination pay to, or otherwise terminate its relationships with materially increase the compensation or benefits of, any Governmental AuthorityBusiness Employee, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) exceptthan, in relation to the Company’s Subsidiarieseach case, in the ordinary course of businessbusiness and consistent with past practice or as may be required by a binding Contract, or plan in effect on the date of this Agreement which has been disclosed to Buyers or by any applicable Laws;
(j) except in the ordinary course of the business consistent with past practice, enter into, modify, amend or terminate any Material Contract as defined in Section 5.19 of this Agreement;
(k) implement any layoffs that would trigger the notice requirements of the WARN Act without complying with the WARN Act;
(l) except as contemplated in this Agreement, or as required by applicable Lawdescribed in Section 7.2(l) of the Seller’s Disclosure, make or change any material Tax election or election, change an annual accounting period, adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with closing agreement, surrender any right to claim a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect refund of material Taxes, consent to any extension or waiver of the statutory limitation period of limitations applicable to any Tax claim or assessment in respect relating to the B&K Business, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax which would have a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in impact on the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregateB&K Business;
(m) (i) incuramend, guarantee modify, extend, renew or otherwise become liable for (whether directly, contingently or otherwise) terminate any material IndebtednessReal Property Lease, and shall not enter into any new lease, sublease, license or other than Indebtedness incurred in the ordinary course of business (which agreement for the avoidance use or occupancy of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;Real Property; or
(n) make agree to take any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the foregoing actions. Notwithstanding any provision herein to the contrary, prior to the Closing, each of the Sellers, the B&K Companies and the Subsidiaries of the B&K Companies will be permitted to declare and pay dividends and distributions of, or otherwise transfer, to ASD or any Subsidiary thereof, (i) any Excluded Assets, and (ii) any other Assets which are not contemplated to be owned or held by Buyers, any Designated Buyer, a B&K Company or any a Subsidiary of its Subsidiariesa B&K Company pursuant to this Agreement, except insofar as may have been required by a change in Law, IFRS an Ancillary Agreement or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01Local Purchase Agreements.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (American Standard Companies Inc)
Conduct of Business. From the date of this Agreement until hereof through the earlier to occur of the Closing Date and or the termination of this Agreement in accordance with its terms (the “Interim Period”)Agreement, the Company shall, and shall cause its Subsidiaries toparties hereby agree, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II the other party in writing (which consent shall not writing, to cause NHCC or IFT, as the case may be, to be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business operated in the ordinary course consistent and in accordance with past practice, including to preserve practice and will not take any action inconsistent with this Agreement or with the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeesconsummation of the Closing. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company parties shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate their Articles of incorporation, bylaws Incorporation or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementBylaws;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assumeextend, assignmaterially modify, partially terminate or completely amend or modify renew any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company lease or any of its Subsidiaries, including Real Propertycontract, except for salesmodifications, transfers, leases, pledges extensions or other encumbrances or dispositions renewals of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries contracts in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (vc) sell, assign, transfer, licenseconvey, assignlease, fail to maintain mortgage, pledge or otherwise dispose of or encumber any of the material their assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than interests therein except in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(gd) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle incur any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incurfor indebtedness for borrowed money, guarantee the obligations of others, indemnify or otherwise become liable for (whether directlyagree to indemnify others or, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amendincur any other liability;
(i) take any action with respect to the grant of any bonus, restate severance or modify any terms of termination pay (otherwise than pursuant to policies or any agreement agreements in effect on the date hereof) or with respect to any outstanding material Indebtednessincrease of benefits payable under its severance or termination pay policies or agreements in effect on the date hereof or increase in any manner the compensation or fringe benefits of any employee or pay, any benefit not required by any existing agreement, plan or policy, other than as set forth in the disclosure schedules;
(nii) make any change in financial accounting methodsthe key management structure, principles including, without limitation, the hiring of additional officers or practices materially affecting the reported consolidated assetstermination of existing officers, liabilities or results of operations of other than as set forth in the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAPdisclosure schedules;
(oiii) adopt, enter into or amend any employee plan, agreement (including, without limitation, any collective bargaining or employment agreement), trust, fund or other arrangement for the benefit or welfare of any employee, except for any such amendment as may be required to comply with applicable regulations; or
(iv) fail to maintain, cancel or materially change coverage under any insurance policy maintain all employee plans in form and amount equivalent in all material respects to the insurance coverage maintained accordance with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereofapplicable law;
(pf) acquire by acquisition or consolidation with, or merge or consolidate with, or purchase substantially all of the assets of, or otherwise acquire any material assets or business of, any corporation, partnership, association or other business organization or division thereof or acquire any subsidiary;
(g) willingly allow or permit to be done any act by which any of the insurance policies may be suspended, impaired or canceled;
(h) enter into, renew, modify or revise any material contract or agreement;
(i) fail to maintain the assets in a material manner substantially their current state of repair, excepting normal wear and tear, or fail to manage its working capital replace (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventoryconsistent with past practice) inoperable, worn-out or obsolete or destroyed assets;
(j) make any loans or advances relating to any partnership, firm, individual, or corporation, except for expenses incurred in the ordinary course of business consistent with past practice; or
(qk) authorize or commit or agree fail to do any action prohibited under this Section 8.01.comply in all material respects with all laws and regulations applicable to their respective businesses;
Appears in 1 contract
Conduct of Business. From Except as contemplated by this Agreement or as otherwise consented to by Liberty, during the period from the date of this Agreement until the earlier of hereof to the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Date, the Company OneBeacon shall, and shall cause its the OneBeacon Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact carry on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except Business only in the ordinary course of business consistent with past practice and, to the extent consistent therewith, use their commercially reasonable best efforts to preserve intact the current business organization of the Business, preserve the rights, franchises, and relations of their customers and policyholders, preserve the Permits issued to any OneBeacon Subsidiary in full force and effect consistent with past practice, keep available the services of the Business Employees and preserve their relationships with producers, agents, brokers, intermediaries, insureds, reinsureds, Governmental Entities and others having business dealings with, or jurisdiction over, the Business. Without limiting the generality of the foregoing, during the period from the date hereof to, except as otherwise provided in clauses (iif), (g) adoptand (h) of this Section 5.01, enter into or materially amend any Company Benefit Plan the Closing Date, except as expressly permitted by this Agreement, OneBeacon shall not, and OneBeacon shall cause the OneBeacon Subsidiaries not to, without the prior written consent of Liberty:
(a) other than in the ordinary course of business consistent with respect past practice, sell, terminate, transfer or otherwise dispose of any assets which would otherwise be Transferred Assets; PROVIDED that the proceeds resulting from any such sale, transfer or disposition of a Transferred Asset shall constitute a Transferred Asset hereunder which Liberty shall be entitled to annual renewalsreceive; PROVIDED, FURTHER, that notwithstanding anything herein to the contrary, the OneBeacon Subsidiaries and OneBeacon shall not sell, transfer or otherwise dispose of any material Tangible Assets;
(i) permit or allow any of the Transferred Assets to become subject to any Liens, except Permitted Liens, (iiiii) grant waive any claims or provide any material bonus, severance or termination payments or benefits rights relating to any employee or director of the Company or its SubsidiariesBusiness, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iviii) hire grant any increase in the compensation or benefits of, or increase or promise to increase, or establish any new, or amend any existing, employee benefit plan, severance plan or other plan of compensation for, any of the Company Business Employees (including any such increase pursuant to any wage, salary, incentive, bonus, pension, profit-sharing or other plan or commitment) for which Liberty or any of its SubsidiariesAffiliates shall become liable or otherwise responsible;
(c) enter into, renew or amend in any material respect any Assigned and Assumed Contract or other contract that is or would be material to the operation of the Business (other than the Outward Reinsurance Agreements), including contracts relating to the implementation of new systems applications affecting the Business or the Transferred Assets, fail to maintain in effect any contract or agreement for the maintenance or support of any software or equipment used in connection with the Business, or exercise any other individual who option under any of the Leased Property Leases;
(d) make any change, in a manner which is providing or will provide services materially adverse to the Company or any of its SubsidiariesBusiness, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent underwriting, pricing, claims, risk retention, marketing, agency actions and management (except for such agency actions and management described in Section 5.01(f)) and reinsurance practices or policies used by any OneBeacon Subsidiary or OneBeacon in connection with past practicethe Business on the date thereof, except as required under applicable law or regulatory requirements;
(e) issue, amend or renew any property and casualty insurance coverage which does not conform to any OneBeacon Insurer's underwriting, pricing and risk retention standards, practices and policies in effect on the date hereof and as provided to Liberty, except as required under applicable regulatory requirements or by any Governmental Entity;
(f) (i) fail except as contemplated by the Post-Closing Serviced Policies Administrative Services Agreement, at any time from the date hereof through the date of the termination of the Transition Services Agreement in accordance with its terms, implement with respect to maintain its existencethe Business any action in any states or jurisdictions within the United States, other than the Excluded States, with respect to withdrawal (or deemed or constructive withdrawal, including due to the termination of insurance producers or notices of nonrenewal of a line or class of business) from a class, line or lines of business in any such state or jurisdiction or with respect to any agency management actions related to such withdrawal other than as listed in SCHEDULE 3.15, and (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses)with respect to those withdrawal actions set forth on SCHEDULE 3.15, (iii) purchase respond to any Governmental Entity, insurance producers' or otherwise acquire (whether by merging insureds' inquiries or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger)complaints;
(g) make permit any capital expenditures Business Employee's employment to be transferred to or (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than with respect to the Shared Business Employees) shared with any capital expenditure (trade or series business of related capital expenditure) approved under any OneBeacon Subsidiary or any OneBeacon Subsidiary's Affiliate other than the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following Business at any time from the date hereofhereof to January 1, 2002;
(h) make at any loanstime from the date hereof to January 1, advances or capital contributions to2002, or investments in, enter into any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent employment agreement with past practice or between the Company and its Subsidiariesany Business Employee;
(i) amend in a manner materially detrimental enter into, terminate or commute any Outward Reinsurance Agreement or other reinsurance or retrocession agreement relating to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse Business or fail to renew or maintain in effect any material authorization from a Governmental Authority or material Permit required for Outward Reinsurance Agreement relating to the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;Business; or
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been be required by a change in LawGovernmental Entity, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do take any action prohibited under this Section 8.01of the foregoing actions.
Appears in 1 contract
Samples: Master Agreement (White Mountains Insurance Group LTD)
Conduct of Business. From Seller covenants and agrees with Buyer that between the date of this Agreement until the earlier of and the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries toDate, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Periodprovided on Schedule 8.1:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made The Business will be conducted by Seller in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiariessame manner as heretofore conducted, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;subject to matters beyond Seller's reasonable control.
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stockSeller will maintain, or issuecause to be maintained, sell, transfer, pledge, encumber or grant any right, option or other commitment for insurance on the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except Assets and the Business substantially as heretofore in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;effect.
(c) except as otherwise permitted Without Buyer's prior written approval, no increase in either the base pay, commission rate, bonus or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify other compensation to any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company Employees will be announced, instituted or any of its Subsidiaries, including Real Property, paid (except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company normal increases and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries earned bonuses given in the ordinary course of business;).
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any Without prior notification to Buyer, no material increase in compensationcontract or commitment related to the Business or the Assets will be entered into by Seller; and (ii) without Buyer's prior written approval, benefits no contract or severance commitment related to any key employee the Business or manager the Assets will be entered into by Seller outside of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice business.
(i) Without prior notification to Buyer, none of the Assumed Contracts will be terminated, extended or amended by Seller in any material respect; and (ii) adoptwithout Buyer's prior written approval, enter into none of the Assumed Contracts will be terminated, extended or materially amend amended by Seller in any Company Benefit Plan other than in respect outside of the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;business.
(f) Seller will notify Buyer of the withdrawal of any shareholder of Seller or the termination of any such membership by the board of directors of Seller.
(ig) fail Seller will use commercially reasonable efforts to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission existing good condition and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion repair of the assets ofAssets.
(h) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) Seller will not sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt create or enter into a plan of complete or partial liquidationpermit to become effective any Encumbrance on, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization any of the Company or any of its Subsidiaries Assets (other than the MergerPermitted Encumbrances);
(g) make , nor will Seller agree or commit to do any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;foregoing.
(i) amend in a manner materially detrimental to Upon receipt of actual knowledge thereof, Seller will promptly advise Buyer of the Company commencement or any threat against Seller of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority Litigation relating to or material Permit required for affecting Seller, the conduct of Business or the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;Assets.
(j) exceptNeither Seller nor any of its representatives will, in relation directly or indirectly, solicit, review, discuss, negotiate or otherwise consider or accept any inquiry or proposal relating to the Company’s Subsidiariessale of any of the Assets or the Business. For purposes of this Section 8.1 only, in "outside of the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) " means (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred not reflected in the ordinary course operating budget of business (which for the avoidance of doubtSeller, includes any refinancing or issuance of debt securities) or and (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been not required by a change in Law, IFRS any governmental or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01regulatory authority.
Appears in 1 contract
Conduct of Business. From The Company agrees that, between the date of this Agreement until the earlier of the Closing Effective Date and the termination Closing Date, unless Purchaser shall otherwise agree in writing (or unless the Company has provided written notice of this Agreement in accordance with its terms such desired action and Purchaser shall not have objected within five (the “Interim Period”5) Business Days of receipt thereof), the businesses of the Company shalland the Subsidiaries shall be conducted only in, and the Company and the Subsidiaries shall cause not take any action except in, the ordinary course of business and in a manner consistent with past practice; and the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries toand to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers and other Persons with which the Company or any Subsidiary has significant business relations. By way of amplification and not limitation, except as expressly contemplated by this Agreementthe Transaction Agreements and Exhibit 7.01 attached hereto, as required by applicable Law or pursuant to any COVID-19 Measures applicable to neither the Company nor any Subsidiary shall, between the Effective Date and its Subsidiaries the Closing Date, directly or as consented indirectly, do, or propose to by RMG II in writing do, any of the following without the prior written consent of Purchaser (which consent or unless the Company has provided written notice of such desired action and Purchaser shall not be unreasonably conditionedhave objected within five (5) Business Days of receipt thereof):
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) issue, withheldsell, delayed pledge, dispose of, grant or denied)encumber, use commercially reasonable efforts to or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality any shares of any class of capital stock of the foregoingCompany or any Subsidiary, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit Eor any options, the conversion warrants, convertible securities or other rights of any CCPS in accordance with their termskind to acquire any shares of such capital stock, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary in respect (except for (x) shares of any Indebtedness incurred by the SS Group or to comply with the obligations Common Stock issuable upon conversion of the Company, its Subsidiaries or the SS Group in respect Preferred Stock and (y) shares of such Indebtedness), as required by applicable Law or Common Stock issuable pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, Existing Warrants and the Company shall cause its Subsidiaries not to, during Stock Plans outstanding on the Interim Period:
Effective Date) or (aii) change or amend the certificate of incorporation, bylaws or other organizational documents any assets of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000Subsidiary, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than and in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business a manner consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.
Appears in 1 contract
Conduct of Business. From Except as provided in this Article VIII, from the date of this Agreement hereof until the earlier of Closing, Sellers and Xxxxxxxxx, jointly and severally, covenant and agree that Sellers shall conduct the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business Business in the ordinary and normal course of business, consistent with Sellers' past practice, including to preserve practices and with the goodwill intent of preserving the ongoing operations and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeesAssets of the Business. Without limiting the generality of the foregoing, except as expressly contemplated permitted by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations prior written consent of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim PeriodBuyer:
(a) change No Seller shall sell, assign, lease or amend the certificate otherwise transfer or dispose of incorporation, bylaws or other organizational documents any of the Company Assets, unless the same shall be replaced with assets of equal or any greater value and utility, and each Seller's inventories of its Subsidiaries except (i) in the case of the Companyspare parts and expendable supplies, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactionsif any, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreementshall be maintained at levels consistent with past practices;
(b) except in No Seller shall create, assume or permit to exist any Lien upon the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real PropertyAssets, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not those in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect existence on the date of this Agreement, all of which will be removed on or prior to the Closing Date;
(ic) grant Each Seller shall operate the Business in all material respects in accordance with Applicable Law, and shall not cause or permit by any act, or failure to act, any of the Governmental Approvals to expire, be surrendered, adversely modified, or otherwise terminated;
(d) Each Seller shall not waive any material increase in compensation, benefits right under any Contract or severance license relating to any key employee the Assets or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice Business;
(iie) adopt, No Seller shall enter into or materially amend renew any Company Benefit Plan Contract to be assumed by Buyer hereunder pursuant to Section 3.1 other than in a manner consistent with the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director past practices of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practiceBusiness;
(f) (i) fail Each Seller shall timely make all payments required to maintain its existence, (ii) enter into a new material line be paid under any Contract to be assumed by Buyer when due and otherwise pay all liabilities and satisfy all obligations within 60 days of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger)invoice;
(g) make No Seller shall increase or modify or agree to increase or modify the compensation, bonuses or other benefits or perquisites of any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct employee of the business of the Company or any of its SubsidiariesBusiness, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or;
(qh) authorize or commit or agree Each Seller and Xxxxxxxxx shall use their respective best efforts to do preserve the operations, organization and reputation of the Business intact, to preserve the goodwill and business of each Seller's advertisers, programming, suppliers, and others having business relations with it, and to continue to conduct financial operations of each Seller, including its credit and collection policies, with no less effort, as heretofore;
(i) Each Seller shall remove, cure, correct and repair prior to the Closing (to the extent within such Seller's control) any action prohibited material deficiencies in the Assets being sold under this Section 8.01Agreement;
(j) Each Seller shall maintain the insurance policies on the Business and the Assets listed in SCHEDULE 7.16 or their equivalent; and
(k) Each Seller shall maintain its books and records in accordance with GAAP and the principles, procedures and elections utilized by Sellers in the preparation of the audited financial statements included in the Financial Statements.
Appears in 1 contract
Conduct of Business. From Prior to the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement Effective Time, unless USP has consented in accordance with its terms writing thereto, SURGICOE (the “Interim Period”), the Company a) shall, and shall cause its each of SURGICOE’s Subsidiaries to, except as expressly conduct its respective business only according to its ordinary and usual course of business (including without limitation making all normal and planned capital expenditures on behalf of their respective facilities and continuing all development projects currently in process), (b) shall use its reasonable efforts, and shall cause each of SURGICOE’s Subsidiaries to use its reasonable efforts, to preserve intact its respective business organizations and goodwill, keep available the services of its respective officers and employees and maintain satisfactory relationships with those persons having business relationships with it, (c) shall confer on a regular and frequent basis with one or more representatives of USP to report operational matters of materiality and the general status of ongoing operations, (d) shall not amend its articles of incorporation or bylaws, or any partnership agreement, operating agreement, articles of incorporation or other charter document of any of its Subsidiaries (other than any such amendments needed to implement the transactions contemplated by this Agreement), (e) shall promptly notify USP of any material emergency or other material change in the condition (financial or otherwise), business, properties, assets, liabilities, prospects or in the operation of SURGICOE or its Subsidiaries’ properties and of any governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated), (f) shall not enter into an agreement, contract or commitment which, if entered into prior to the date hereof, would be required to be listed or described in a Schedule to this Agreement, (g) shall not (i) except as required by applicable Law set forth in Exhibit B or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries exercise or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality surrender of the foregoingWarrant, except as expressly contemplated by this Agreement (including the amendment issue any shares of the terms of the CCPS substantially in the form set out in Exhibit Eits capital stock, the conversion of effect any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release stock split or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, change its Subsidiaries or the SS Group in respect of such Indebtedness), capitalization as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact it existed on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactionsdate hereof, (ii) in grant, confer or award any option, warrant, conversion right or other right not existing on the case date hereof to acquire any shares of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business its capital stock or (iii) except as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchaseSection 6.5, redeem or otherwise acquireacquire any of its outstanding equity securities or any outstanding options or rights to purchase any such equity securities, (h) shall promptly advise USP in writing of the commencement or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose threat of any assetsclaim, properties litigation or business of the Company investigative proceeding against SURGICOE or any of its Subsidiaries, including Real Propertyany claim or litigation, except for salesor threat thereof, transfersby or relating to any present or former employee, leasesowner or former owner of an interest in any Subsidiary or affiliated physician of SURGICOE or any of its Subsidiaries by reason of their past employment, pledges consultant relationship, ownership interest or other encumbrances affiliation, whether covered by insurance or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreementnot, (i) grant shall maintain in full force and effect all contracts of insurance and indemnity currently in place, (j) shall not dispose of, mortgage, pledge or otherwise encumber any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000assets, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewalsits business, (iiik) grant shall not amend, terminate or provide change in any material bonusrespect any lease, severance contract, undertaking or termination payments other commitment listed or benefits described in any Schedule to this Agreement, or knowingly do or permit any employee act or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing omit to do any act which will cause a breach of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practicesuch lease, or (iv) hire any employee of the Company or any of its Subsidiariescontract, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture undertaking or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries)commitment, (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to unless such breach would not materially and adversely affect the business of the Company or any of SURGICOE and its Subsidiaries with taken as a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company whole and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy shall not withdraw from any pending or threatened Action or compromise or settle any liability or commence any Action, other than current development project that is in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01process.
Appears in 1 contract
Samples: Merger Agreement (United Surgical Partners International Inc)
Conduct of Business. From the date of this Agreement until Effective Date to the earlier of the Closing Date and or the termination of this Agreement in accordance pursuant to Article IX, except (i) as otherwise expressly contemplated, required or permitted by this Agreement (including with its terms (respect to the “Interim Period”Reorganization), or as otherwise expressly required by the Fund Documentation or the JVAs, (ii) as may be required by applicable Law, (iii) as required by a Governmental Authority, (iv) for matters set forth on Section 6.4 of the Disclosure Schedules, (v) for quarterly tax distributions declared and paid in the Ordinary Course of Business, and (vi) to the extent Buyer shall otherwise consent in writing, the Sellers and the Company agree that:
(a) The Company shall, and the Sellers and the Company shall cause its Subsidiaries the other Company Entities (including by causing any GP Entity of any Fund or Investment JV to take such action) to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to carry on its and their business in the Company and its Subsidiaries or as consented to by RMG II Ordinary Course of Business in writing all material respects (which consent shall not be unreasonably conditioned, withheld, delayed or denied), conduct of the business the parties agree and acknowledge includes the payment of cash dividends) and use commercially reasonable efforts to (i) conduct preserve intact its and operate its business in the ordinary course consistent with past practicetheir business, including to preserve the operations, organization, goodwill and present business relationships with third parties (contractual or otherwise) including with its customers, suppliersClients, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets partners and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement ).
(including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the b) The Company shall not, and the Sellers and the Company shall cause its Subsidiaries not permit any Subsidiary to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in amend its Organizational Documents or the case Organizational Documents of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, other Company Entity;
(ii) make any material change in the case conduct of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries or abandon or discontinue any existing line of business or enter into any material transaction, or make any change in accounting principles, methods or practices or investment practices, except for any changes necessary to conform with GAAP;
(iii) acquire or agree to acquire, directly or indirectly, in any manner, including merger, consolidation, or purchase of equity interests or assets, any business of any Person or business organization or division thereof;
(iv) acquire, lease, license or sublease or agree to acquire, directly or indirectly, in any manner (including via merger, consolidation or purchase of equity interests or assets), any real property;
(v) (A) incur, create, assume refinance, replace or prepay any Indebtedness, issue any debt securities or guarantee the Indebtedness of any other Person, make any loan, advance or capital contribution to, or investment in, any other Person, except for Indebtedness incurred in the Ordinary Course of Business prior to the Measurement Time that is equal to or less than $250,000 in the aggregate, (B) enter into any hedging Contract or other financial agreement or arrangement designed to protect the Company or any Subsidiary against fluctuations in commodities prices or exchange rates, (C) amend any Company Debt Document in any material respect, or (D) cancel or compromise any material debt or claim or waive or release any material right of the Company or any Subsidiary or any of its assets, properties, rights or interests;
(vi) sell, transfer, license, abandon, permit to lapse, lease, sublease or otherwise dispose of (directly or indirectly, by merger, consolidation, sale of equity interest or otherwise), pledge or grant any interest in any of its material assets (including any Owned Real Property or Leased Real Property) (except for selling securities on behalf of Funds in the Ordinary Course of Business or non-exclusive licensing of Intellectual Property in the Ordinary Course of Business), or acquire any additional owned or leased real property;
(vii) to the extent the Company or any Subsidiary has a value consent right or otherwise within the Company’s or any Subsidiary’s control, sell, transfer, abandon, or otherwise dispose of (directly or indirectly, by merger, consolidation, sale of equity interest or otherwise) any Managed Property other than in excess the Ordinary Course of $1,000,000 Business or as contemplated by the CXXXXXX Portfolio AUM Build and Forecast as of March 31, 2023;
(viii) fail to take any action that would prevent the expiration, lapse, termination or abandonment of any permit or license material to the operation of the business of the Company or any Subsidiary;
(ix) enter into or terminate any Contract with any entity required to be registered as a broker-dealer under the Exchange Act, or modify, amend, accelerate, cancel, renew or grant any waiver under any Contract with any entity required to be registered as a broker-dealer under the Exchange Act;
(x) hire, engage or terminate other than for cause any executive, officer or director or implement any plant closures or mass layoffs as defined by the WARN Act;
(xi) unless required by Law, (A) modify, renew, 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 (B) voluntarily recognize or certify any labor union, labor organization, works council, or group of employees of the Company or any Subsidiary as the bargaining representative for any employees of the Company or any Subsidiary;
(xii) unless required by Law or by this Agreement, and other than in the ordinary course of business), (A) adopt, enter into, terminate or materially amend any material Company Plan or employment or severance Contract or (B) other than in the Ordinary Course of Business, increase the compensation or benefits of any director, officer, employee, individual consultant or other individual independent contractor;
(xiii) take any action that would result in the acceleration of the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation pursuant to, any of the Company Plans, other than in the Ordinary Course of Business;
(xiv) unless required by Law, waive, release, amend or fail to enforce the restrictive covenant obligations of any current or former employee, independent contractor, officer or director of the Company or any Subsidiary;
(xv) split, combine or reclassify any of its equity interests or issue or authorize or propose the issuance of any other securities in respect of, in lieu of, or in substitution for, its issued and outstanding equity interests;
(vixvi) adopt or enter into a plan or agreement of complete or partial liquidation, liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the with respect to any Company or any of its Subsidiaries (other than the Merger)Entity;
(gxvii) sell, issue, grant, deliver, pledge, transfer, encumber, redeem or amend the terms of, or authorize the sale, issuance, grant, delivery, pledge, transfer, Encumbrance, redemption or amendment of the terms of, (A) any capital stock, equity interest or other security, (B) any option, call, warrant, restricted securities or right to acquire any capital stock, equity interest or other security, or (C) any instrument convertible into or exchangeable for any capital stock, equity interest or other security;
(xviii) (A) declare, set aside or pay any dividend or other distribution, (whether in cash, securities or other property) in respect of its equity interests other than in the Ordinary Course of Business, or (B) make any capital expenditures (distribution of Promotes in respect of “LP Commitment Investments” under Fund VII, or commitment allow any Company Entity to make any capital expenditures) such distribution, in excess each case, to the beneficial owners of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(hxix) form any Subsidiary or launch any new Fund, acquire any equity interest in any other Person or enter into any material joint venture, partnership or similar arrangement;
(xx) make any loansmaterial Tax election, advances change or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain rescind any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or Tax election, change any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make Tax annual accounting period or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material amended Tax Return, enter into any closing agreement with a Governmental Authority with respect related to Taxes, settle settle, compromise, concede, or compromise abandon any material Tax claim or assessment in respect relating to the Company or any Subsidiary, surrender any right to claim a material refund of material Taxes, consent in writing to any extension or waiver of the statutory limitation period of limitations applicable to any Tax claim or assessment relating to the Company or any Subsidiary or taking of any other similar action relating to the filing of any material Tax Return or the payment of any material Tax, in all cases except as required by Law;
(xxi) initiate any Proceeding, or settle, release, waive or compromise any Proceeding or other claim (or threatened Proceeding or other claim) that (A) requires aggregate payments in excess of $250,000, (B) requires any payments after the Measurement Time, (C) does not include a complete release of claims, (D) includes an admission of wrong-doing with respect to it or any of its Affiliates, (E) results in the imposition of any restrictions upon its business or the business of any of its Affiliates (including Buyer or any of its Affiliates after the Closing), or (F) is with any Governmental Authority;
(xxii) (A) amend, terminate, renew, cancel, grant a waiver under or otherwise modify any Material Contract or Governmental Authorization in any material amount of Taxesrespect in a manner that is adverse to the Company or any Subsidiary, in each case, or enter into any Tax sharing or similar agreement, in each case Contract that would be a Material Contract if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter entered into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof, (B) amend, modify or waive any right under, assign, create any material default under or voluntarily terminate any Material Contract or Governmental Authorization, or (C) cause any GP Entity of any Fund or Investment JV to Consent to any amendment, termination, waiver or other modification of any Fund Documentation or JVA, in each case other than in the Ordinary Course of Business;
(pxxiii) fail in a material manner enter into any Contract with an Affiliate or any Related Party; and
(xxiv) authorize, resolve, commit, agree (by Contract or otherwise) or otherwise become obligated to manage its working capital (including the timing of collection of accounts receivable and take any of the payment of accounts payable and the management of inventory) actions in the ordinary course of business consistent with past practice; or
foregoing clauses (qi) authorize or commit or agree to do any action prohibited under this Section 8.01through (xxiii).
Appears in 1 contract
Conduct of Business. From Management Sellers shall secure that, from the date of this Agreement Signing Date until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim PeriodDate:
(a) change each of the Acquired Companies conducts its business and operations in the ordinary course and consistent with past practice and uses reasonable efforts to preserve intact its current business organisation, keep available the services of its current officers and employees and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with such Acquired Company;
(b) no action and/or decision (in particular regarding investments, disposals, employment of personnel and/or appointment of agents) which could have a material effect on the Acquired Companies’ business, assets, liabilities or financial situation be taken without prior written approval of Purchaser (which shall not be unreasonably withheld or delayed);
(c) the Acquired Companies do not sell, transfer or otherwise dispose of assets other than the sale of inventory in the ordinary course and consistent with past practice;
(d) the Acquired Companies do not enter into, or permit any of the assets owned or used by it to become bound by, any Contract other than in the ordinary course and consistent with past practice or amend or prematurely terminate, or waive any material right or remedy under, any Contract to which it is a party;
(e) the certificate Acquired Companies do not incur or assume any new debt or liability or subject any of incorporationtheir properties or assets to any new lien other than in the ordinary course and consistent with past practice;
(f) none of the Acquired Companies declares, bylaws accrues, sets aside or pays any dividend or makes any other distribution in respect of any shares or other organizational documents securities, or repurchase, redeems or otherwise reacquires any shares or other securities;
(g) none of the Acquired Companies sells, issues or authorises the issuance of: (i) any shares or other security; (ii) any option or right to acquire any shares (or cash based on the value of shares) or other security; or (iii) any instrument convertible into or exchangeable for any shares (or cash based on the value of shares) or other security;
(h) none of the Acquired Companies amends or permits the adoption of any amendment to such Acquired Company’s organisational documents, or effects or permits such Acquired Company to become a party to any acquisition transaction, recapitalisation, reclassification of shares, stock split, reverse stock split or similar transaction;
(i) none of the Acquired Companies forms any subsidiary or acquires any equity interest or other interest in any other Person;
(j) none of the Acquired Companies makes, without prior written approval of Purchaser (which shall not be unreasonably withheld or delayed), any capital expenditure, except for (i) budgeted capital expenditures in the range of CHF 750,000 to be made in connection with the current expansion plans of the Company or any of its Subsidiaries except and/or (iii) in the case capital expenditures that, when added to all other capital expenditures made on behalf of the Acquired Companies, from the Signing Date until the Closing Date do not exceed CHF 500,000;
(k) none of the Acquired Companies lends money to any Person (except that each of the Acquired Companies may make routine travel advances and salary advances — covered by the relevant employee’s salary entitlement — to current employees of such Acquired Company, for any such change or amendment made and usual advance payments to suppliers to cover purchase of materials, all in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise consistent with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(apast practices);
(dl) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business none of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business Acquired Companies: (i) not in excess changes the collective status of $5,000,000 in the aggregate, its employees; (ii) in respect of establishes, adopts, amends or terminates any power generating assets, with a capacity not in excess of 500 megawatts, Plan; (iii) as between the Company and its Subsidiariespays any bonus or makes any profit-sharing payment, (iv) in relation to the Company’s Subsidiariescash incentive payment or similar payment, other than commissions paid in the ordinary course of business and consistent with past practice practices; (iv) increases the amount of the wages, salary, commissions, fringe benefits or other compensation (including equity-based compensation, whether payable in cash or otherwise) or remuneration payable to any of its directors, officers or employees; or (v) the creation of hires or makes an offer to hire any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key new employee or manager of the Company or its Subsidiaries with an annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation salary in excess of $1,000,000 individually CHF 100,000 without prior written approval of Purchaser (which shall not be unreasonably withheld or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiariesdelayed), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee none of the Acquired Companies changes any of its methods of accounting or otherwise become liable for (whether directly, contingently or otherwise) accounting practices in any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtednessrespect;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations none of the Company or Acquired Companies makes any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAPTax election;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as none of the date hereof;Acquired Companies commences or settles any legal proceeding without prior written approval of Purchaser (which shall not be unreasonably withheld or delayed); and
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and none of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize Acquired Companies shall agree or commit or agree to do take any action prohibited under this Section 8.01of the actions described in clauses “(c)” through “(o)” above.
Appears in 1 contract
Samples: Share Purchase Agreement (Applied Materials Inc /De)
Conduct of Business. From Except with the written consent of Buyer, as otherwise provided in this Agreement, as set forth in Schedule 5.01 or required by Applicable Law, or as required by the terms and conditions of Contracts either disclosed on or not required to be disclosed on Schedule B.12 ("Existing Contracts"), from the date of this Agreement until the earlier Closing Date, Parent shall cause Seller Companies and TTSI to conduct the TTS Business in all material respects in accordance with the historical and customary operating practices relating to the conduct of the TTS Business and shall use commercially reasonable best efforts to preserve intact the TTS Business and the relationships of Seller Companies and TTSI with third parties in connection with the TTS Business, and Seller Companies and TTSI shall not:
(i) make any capital expenditure, or group of related capital expenditures relating to the TTS Business in excess of $100,000 (other than capital expenditures contemplated by the 1998 capital plan previously provided to Buyer);
(ii) sell or dispose of more than an aggregate of $250,000 of assets that would constitute Contributed Assets or Transferred Intellectual Property if owned, held or used by TTSI on the Closing Date and (other than the termination sale of this Agreement in accordance with its terms Inventory (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law including obsolete Inventory whether or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtednessbusiness), as required by applicable Law or pursuant to and any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment sale made in the ordinary course of business and which business);
(iii) notwithstanding Section 5.01(ii), sell, transfer, license or otherwise dispose of, any Transferred Intellectual Property (except for certain Intellectual Property with registrations that will expire in the normal course that will not have an material adverse impact on constitute Transferred Intellectual Property, the Company’s ability to perform its obligations under this Agreement license or to consummate sale of Intellectual Property in connection with the Transactions, (ii) in the case Shaft Lab product line or other licenses of the Company’s Subsidiaries, for any such change or amendment made Intellectual Property granted in the ordinary course of business or which do not materially deplete the value of such Intellectual Property prior to Closing);
(iiiiv) except as expressly contemplated by this Agreement, amend, modify or supplement TTSI's Certificate of Incorporation or bylaws;
(bv) except in the ordinary course issue any shares of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock of TTSI or any options, warrants or other equity interests in rights to acquire any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock of TTSI or securities convertible into or exchangeable for shares of their TTSI capital stock, except as contemplated by Section 2.01;
(vi) incur any indebtedness for money borrowed, other than the debt financing contemplated by Section 2.02 or issueintercompany indebtedness with another Seller Company cancelled at or prior to Closing;
(vii) terminate or materially reduce the coverage of any policies of title, sellliability, transferfire, pledgeworkers' compensation, encumber property and any other form of insurance covering the operations of TTSI or grant the TTS Business other than any righttermination or reduction of any insurance covering Parent's businesses generally or where such policies are replaced by policies that are substantially similar in all material respects to the terminated policies;
(viii) settle any material lawsuit, option claim or other commitment for material dispute nor settle any other lawsuit, claim or other dispute if such settlement imposes a material continuing non-monetary obligation on TTSI or the issuance TTS Business or any of shares of their capital stock, the Contributed Assets or split, combine Transferred Intellectual Property or reclassify any shares of their capital stock (except in each case in relation material monetary obligation that will not be satisfied prior to the repaymentClosing or due and payable on or before the one year anniversary of the Closing Date;
(ix) except as would not otherwise be prohibited by Section 5.01(x) below and except as would not constitute an Assumed Liability, prepayment grant or refinancing of implement any new or modified severance, termination or other employee benefit or compensation arrangement or increase or accelerate any benefits payable under the enforcement of severance or termination pay policies or other employee benefit or compensation arrangement with respect to any security Transferred Employee; or
(x) except as otherwise may be permitted or required by this Agreement or Applicable Law and except as would not constitute an Assumed Liability, adopt or amend in any material respect any Employee Plan or Benefit Arrangement in respect of any Indebtedness secured Transferred Employee or, other than compensation increases in the ordinary course of business, with respect to any Transferred Employee whose base compensation is $75,000 or above of TTSI or the TTS Business, as the case may be, increase the compensation or fringe benefits of any such Transferred Employee or pay any benefit not required by Company Ordinary Stock held by any Employee Plan or Benefit Arrangement with respect to such Transferred Employee as in effect on the SS Groupdate hereof.
(xi) or (iv) repurchasefail to keep the equipment, redeem or otherwise acquiremachinery and systems used in the TTS Business in compliance, in all material respects, with all Applicable Laws and with all licenses and permits, and reasonably maintain all such assets and replace any thereof which shall be worn out, lost, stolen, or offer to repurchasedestroyed, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract past practices (other than assets that are no longer necessary for the operation of a type required to be listed on Schedule 4.13(athe TTS Business);
(dxii) sellfail to maintain the files and records of the TTS Business in the usual, transferregular and ordinary manner, leaseconsistent with past practices;
(xiii) fail to manage or cause to be managed the collection and payment of the accounts receivable and accounts payable of the TTS Business and otherwise maintain and manage their respective inventories and other current assets and current liabilities in the ordinary course of business and consistent with past practice, pledge including making payment with respect to all of their respective accounts payable, current maturities of long term debt and other current payables in a timely manner and in accordance with the terms of such payable or such indebtedness, as the case may be, provided that no such indebtedness (other than intercompany indebtedness) shall be prepaid or otherwise encumber, abandon, cancel retired in whole or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation part prior to the Company’s Subsidiariesdate on which such indebtedness or portion thereof is due to be repaid, it being understood that the covenant set forth in this Section 5.01(xiii) shall not prohibit Parent or the Seller Companies from disputing any accounts payable in good faith, in the ordinary course of business and consistent with past practice or require Parent or the Seller Companies to generally change its practices with respect to the collection and payment of accounts receivable and accounts payable;
(vxiv) fail to take commercially reasonable steps consistent with current practices, and to cause any relevant Seller Company to take commercially reasonable steps consistent with current practices, to protect all Transferred Intellectual Property and take commercially reasonable best efforts to prevent any of it from falling into the creation public domain;
(xv) enter into any agreement, contract, lease, license, commitment or instrument (or series of related agreements, contracts, leases, licenses, commitments or instruments) that would be required to be listed on Schedule B.12 or accelerate, terminate, modify or cancel in a manner materially adverse to the TTS Business any agreement, contract, lease, license, commitment or instrument (or series of related agreements, contracts, leases, licenses, commitments or instruments) that is required to be listed on Schedule B.12;
(xvi) impose any material Lien (other than any Lien of the type that would constitute a Permitted Lien if in existence on the date hereof) upon any of the Contributed Assets or Transferred Intellectual Property;
(xvii) make any investment in, any loan to, or any acquisition of the securities of, other than in the ordinary course of business, assets of, any other Person (or series of related investments, loans, and acquisitions) either involving more than $100,000 or outside the ordinary course of business;
(xviii) make any loan to, or enter into any other transaction with, any of its directors, officers, or employees, other than in their capacity as such in connection with employee benefits or compensation arrangements and in the ordinary course of business consistent with past practices;
(xix) implement any layoffs of any pledge, encumbrance or employee who would otherwise be a Transferred Employee other security interest over than the termination of any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries employee in the ordinary course of business;
(exx) except as otherwise required by Law make or existing Company Benefit Plans, policies pledge to make any charitable or Contracts of other capital contribution that would be payable following the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except closing and not reflected in the ordinary course of business consistent with past practice (ii) adopt, enter into Final Net Working Capital Amount or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than otherwise exceeding $1,000,000 in the ordinary course of business consistent with past practice;50,000; and
(fxxi) (i) fail commit to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01foregoing.
Appears in 1 contract
Samples: Reorganization, Recapitalization and Stock Purchase Agreement (Black & Decker Corp)
Conduct of Business. From the date of this Agreement until the earlier of hereof through the Closing Date and Date, Seller shall operate the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business Business in the ordinary course consistent of the Business and in accordance with past practice, including to preserve practice and Seller will not take any action inconsistent with this Agreement or with the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeesconsummation of the Closing. Without limiting the generality of the foregoing, Seller shall not, except as expressly specifically contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Periodby Buyer:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assumeextend, assignmaterially modify, partially terminate or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) renew any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000Lease, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practiceSeller's business;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (vb) sell, assign, transfer, licenseconvey, assignlease, fail to maintain mortgage, pledge or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company Assets, or any of its Subsidiaries with a value in excess of $1,000,000 (other than interests therein, except in the ordinary course of business)the Business and, without limiting the generality of the foregoing, Seller will produce, maintain and sell Inventory consistent with its past practices;
(c) merge or consolidate with, or acquire (viexcept in the ordinary course) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization any of the Company assets of, any other corporation, business or person, or solicit or consider from any corporation, business or person any inquiries, proposals or offers relating to the disposition of the Assets or the merger or consolidation of Seller with any corporation, or divulge or otherwise disclose to any corporation, business or person information concerning any aspects of the terms of this Agreement. Seller shall promptly notify Buyer orally, and confirm in writing, all relevant details relating to inquiries or proposals which Seller may receive relating to any of its Subsidiaries (other than the Mergermatters referred to in this Section 6.1(c);
(gd) make any fail to expend funds for budgeted capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereofcommitments;
(he) make willingly allow or permit to be done any loansact by which any of Seller's insurance policies may be suspended, advances impaired or capital contributions tocanceled;
(f) fail to pay its accounts payable, or investments in, fail to pay or discharge when due any other Person, other than, in relation to the Company’s Subsidiariesliabilities, in the ordinary course of business the Business;
(g) enter into, renew, modify or revise any agreement or transaction with any of its Affiliates;
(h) fail to maintain its assets in substantially their current state of repair, excepting normal wear and tear or fail to replace consistent with Seller's past practice practices inoperable, worn-out or between the Company and its Subsidiariesobsolete or destroyed assets;
(i) amend make any loans or advances to any partnership, firm or corporation, or, except for expense reimbursements incurred by agents or employees in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct ordinary course of the business of the Company or Business, any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relationsindividual;
(j) except, intentionally do any other act which would cause any representation or warranty of Seller in relation this Agreement to the Company’s Subsidiaries, be or become untrue in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closingrespect;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of businessagreement, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directlyobligated, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01hereunder; or
(l) pay any cash dividend or make any cash distribution.
Appears in 1 contract
Conduct of Business. From The Company agrees that, between the date of this Agreement until the earlier of and the Closing Date Date, unless Purchaser shall otherwise agree in writing (or unless the Company has provided written notice of such desired action and the termination Purchaser shall not have objected within five (5) Business Days of this Agreement in accordance with its terms (the “Interim Period”receipt thereof), the businesses of the Company shalland the Subsidiaries shall be conducted only in, and the Company and the Subsidiaries shall cause not take any action except in, the ordinary course of business and in a manner consistent with past practice; and the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries toand to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers and other Persons with which the Company or any Subsidiary has significant business relations. By way of amplification and not limitation, except as expressly contemplated by this Agreementthe Transaction Agreements and Exhibit 7.01 attached hereto, as required by applicable Law or pursuant to any COVID-19 Measures applicable to neither the Company nor any Subsidiary shall, between the date of this Agreement and its Subsidiaries the Closing Date, directly or as consented indirectly, do, or propose to by RMG II in writing do, any of the following without the prior written consent of Purchaser (which consent or unless the Company has provided written notice of such desired action and Purchaser shall not be unreasonably conditionedhave objected within five (5) Business Days of receipt thereof):
(a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) issue, withheldsell, delayed pledge, dispose of, grant or denied)encumber, use commercially reasonable efforts to or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality any shares of any class of capital stock of the foregoingCompany or any Subsidiary, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit Eor any options, the conversion warrants, convertible securities or other rights of any CCPS in accordance with their termskind to acquire any shares of such capital stock, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary in respect (except for (x) shares of any Indebtedness incurred by the SS Group or to comply with the obligations Common Stock issuable upon conversion of the Company, its Subsidiaries or the SS Group in respect Preferred Stock and (y) shares of such Indebtedness), as required by applicable Law or Common Stock issuable pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, Existing Warrants and the Company shall cause its Subsidiaries not to, during Stock Plans outstanding on the Interim Period:
date hereof) or (aii) change or amend the certificate of incorporation, bylaws or other organizational documents any assets of the Company or any of its Subsidiaries Subsidiary, except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreementa manner consistent with past practice;
(bc) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside aside, make or pay any dividend or distribution other distribution, payable in cash, stock, property or otherwise otherwise, with respect to any of its capital stock except for dividends by any direct or other equity interests in any of indirect wholly owned Subsidiary to the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a)Subsidiary;
(d) sellreclassify, transfercombine, leasesplit, pledge subdivide or redeem, or purchase or otherwise encumberacquire, abandondirectly or indirectly, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business capital stock; (e) (i) not in excess acquire (including, without limitation, by merger, consolidation, or acquisition of $5,000,000 in the aggregatestock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or any material amount of assets; (ii) in respect incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any power generating assetsPerson, with a capacity not or make any loans or advances, or grant any security interest in excess any of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, assets except in the ordinary course of business and consistent with past practice practice; (iii) authorize, or make any commitment with respect to, any single capital expenditure which is in excess of US$200,000 or capital expenditures which are, in the aggregate, in excess of US$2,000,000 for the Company and the Subsidiaries taken as a whole; or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendmentcontract, agreement, settlement, consent commitment or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement arrangement with respect to any outstanding material Indebtedness;
(n) make any change matter set forth in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.7.01(e);
Appears in 1 contract
Conduct of Business. From and after the date of this Agreement until the earlier of hereof and to the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries toDate, except as expressly set forth on Schedule 6.8 or as otherwise contemplated by this Agreement, as required by applicable Law Lilly covenants and agrees that it will, or pursuant to any COVID-19 Measures applicable to will cause its Affiliates to, conduct the Company sale and its Subsidiaries or as consented to by RMG II marketing of the Product in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business the Territory in the ordinary and usual course consistent with past practice, including and use its commercially reasonable efforts to preserve intact the goodwill business and present business related relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers suppliers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeesThird Persons. Without limiting the generality any of the foregoing, from and after the date hereof and to the Closing Date, except as expressly set forth on Schedule 6.8 or as otherwise contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit EAgreement, the conversion of any CCPS in accordance with their termsLilly covenants and agrees that it will not, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall will cause its Subsidiaries Affiliates not to, during without the Interim Period:
(a) change prior written consent of Xxxxx: incur, create or amend the certificate of incorporation, bylaws or other organizational documents assume any lien with respect to any of the Company Purchased Assets or Inventory; dispose of any of its Subsidiaries except (i) the Purchased Assets; enter into, amend any material term of or waive any material right under any material contract related to the Product, the Product Licensed Patent, the Product Licensed Technology, the Purchased Assets or Inventory other than contracts that Lilly is required to maintain in the case of the Company, full force and effect and/or are necessary for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability Lilly to perform its obligations under this Agreement and the Manufacturing Agreement; institute any new methods of purchase, sale or to consummate the Transactions, (ii) operation or institute any changes in the case pricing of the Company’s SubsidiariesProduct or in promotional allowances or payment terms, for any such change other than non-material methods or amendment made changes in the ordinary course of business the sale, promotion and marketing of the Product consistent with past practice and changes in the pricing of the Product in the ordinary and usual course consistent with past practice; make any changes in the selling, pricing or (iii) as expressly contemplated by this Agreement;
(b) except advertising practices, other than non-material changes in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any sale and marketing of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business Product consistent with past practice, or (iv) hire ; launch any employee packaging changes of the Company Product or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion extensions of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) Product; waive, release, compromise, settle grant or satisfy transfer any pending or threatened Action or compromise or settle any liability or commence any ActionIntellectual Property, other than in the ordinary course of business the sale and marketing of the Product; compromise or that otherwise do not exceed $10,000,000 in settle any of the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, litigation matters set forth on Schedule 4.19; other than Indebtedness incurred with respect to managed care or PBM contracts that Lilly is required to maintain in full force and effect and/or are necessary for Lilly to perform its obligations under this Agreement, enter into any managed care or PBM contract including the Product, including amending or supplementing any existing managed care or PBM contract to include the Product, not renew any existing agreements including the Product that Lilly is a party to providing for the payment of rebates or modify the terms relating to the Product in any such existing agreement; sell Product to wholesalers on terms inconsistent with the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary and usual course of business, amend, restate or modify ; and agree to take any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01foregoing actions.
Appears in 1 contract
Samples: Assignment, Transfer and Assumption Agreement (Galen Holdings PLC)
Conduct of Business. From the date of this Agreement The Company hereby covenants and agrees that, until the earlier of the Second Closing Date and or the termination of this Agreement in accordance with its terms (the “Interim Period”)Agreement, the Company shall, and shall cause its Subsidiaries to, except as unless otherwise expressly contemplated by this Agreement, as required Agreement or consented to in writing by applicable Law or pursuant the Purchasers (such consent not to any COVID-19 Measures applicable to be unreasonably withheld):
(a) the Company will and will cause each of its Subsidiaries or to (1) operate its business in the usual and ordinary course consistent with past practices except as consented to contemplated by RMG II in writing this Agreement; (which consent shall not be unreasonably conditioned, withheld, delayed or denied), 2) use commercially reasonable efforts to (i) conduct maintain and operate keep its business properties and assets in the as good a repair and condition as at present, ordinary course consistent with past practice, including to preserve the goodwill wear and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees tear excepted; and (ii3) comply use all reasonable efforts to keep in all material respects with all Laws applicable full force and effect insurance and bonds comparable in amount and scope of coverage to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement that currently maintained; and
(including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), b) the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or permit any of its Subsidiaries except to:
(i1) acquire or agree to acquire (whether pursuant to a definitive agreement, a non-binding letter of intent or otherwise), by merging or consolidating with, by purchasing an equity interest in the case or a portion of the Companyassets of, for or by any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactionsother manner, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of any corporation, partnership, association or other business in relation to the Company’s Subsidiaries (i) makeorganization or division thereof, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect acquire or agree to acquire any capital stock or assets of any other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer Person (other than transfers of Company Stock held by former employees of assets which, individually or in the Company or its Subsidiaries to existing employees)aggregate, pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation are not Material to the repayment, prepayment business or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business operations of the Company or any of its Subsidiaries, including Real Property), except for salesany acquisitions or agreements to acquire that have previously been disclosed to the Purchasers;
(2) other than in connection with the Credit Agreements, transfersrefinancing of the debt under the Credit Agreements and financings disclosed in the SEC Documents, leasessell, pledges exchange, mortgage, pledge, transfer or other encumbrances otherwise dispose of, or dispositions agree to sell, exchange, mortgage, pledge, transfer or otherwise dispose of, any of assetsits assets or any assets of any of its Subsidiaries that are, properties individually or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect Material to the business or operations of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and or any of its Subsidiaries, ;
(iv3) in relation adopt or propose to adopt any amendments to the Company’s SubsidiariesCertificate of Incorporation or Bylaws, or make any Material changes in the ordinary course Company's capital structure;
(4) change any of business and consistent with past practice its accounting methods, principles, practices or (v) the creation policies or make or rescind any express or deemed election relating to Taxes, settle or compromise any Proceeding relating to Taxes, or change any of any pledge, encumbrance its methods of reporting income or deductions for federal or other security interest over any landincome Tax purposes from those employed in the preparation of the federal or other income Tax Returns or other Tax Returns for the taxable year ending December 31, property 1997, except as may be required by Applicable Law or assets of Subsidiaries or the Company GAAP and except as would not be Material to secure Indebtedness incurred by the Company or its Subsidiaries Subsidiaries;
(5) other than borrowings under or permitted by the Credit Agreements refinancing of the debt under the Credit Agreements and financings disclosed in the SEC Documents, incur any obligation for borrowed money or purchase money indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument or under any financing lease, whether pursuant to a sale-and-leaseback transaction or otherwise;
(6) make any loans or advances to any Person, except in the ordinary course of business;
(e7) except declare or pay any dividend or make any other distribution (whether in cash, stock or property) with respect to its capital stock (or other voting or equity securities or interests, as otherwise applicable), other than dividends paid by any Subsidiary to the Company or another Subsidiary in the ordinary and usual course of the Company's business;
(8) split, combine, reclassify or amend any term of any of the Company's shares or capital stock (or other voting or equity securities or interests, as applicable);
(9) (A) in any Material amount, issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, or otherwise) any of its shares of capital stock or other securities other than (i) as contemplated herein or (ii) pursuant to awards issued and outstanding as of the date hereof under outstanding options to purchase Common Stock granted under the Company's director and employee stock incentive plans disclosed in the SEC Documents or as required by Law or existing Company Benefit Plans, policies or Contracts under the terms of any other security of the Company or its Subsidiaries, outstanding as in effect on as of the date of this Agreement or (B) in any Material amount, purchase or otherwise acquire any of its shares or capital stock, employee or director stock options, warrants or other equity securities or debt securities other than pursuant to the terms thereof as in effect as of the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q10) authorize agree in writing or commit or agree otherwise to do any action prohibited under this Section 8.01of the foregoing.
Appears in 1 contract
Conduct of Business. From During the period from the date of this Agreement until to the earlier of the Closing Date Acceptance Time, the Effective Time and the termination of date, if any, on which this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries tois terminated pursuant to Section 8.1, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denied)delayed) in advance by Parent or as otherwise specifically required by this Agreement, use commercially reasonable efforts to (i) conduct the Company shall, and operate shall cause each of its Subsidiaries to, carry on its business in the ordinary course consistent with past practice, including practice and use reasonable best efforts to preserve intact its business organization, preserve its assets, rights and properties in good repair and condition, keep available the services of its current officers, employees and consultants and preserve its goodwill and present business its relationships (contractual or otherwise) with its customers, suppliers, joint venture partnerslicensors, licensees, distributors and creditors and others having material business relationships dealings with it it. In addition to and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the Acceptance Time, the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except as expressly contemplated by this Agreement (including the amendment set forth in Section 6.1 of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, Company Disclosure Letter or entering into such documents and instruments and taking such actions as may be reasonably specifically required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect another Section of any Indebtedness incurred by the SS Group or to comply with the obligations of the Companythis Agreement, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing without Parent’s prior written consent (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), the Company shall not, and the Company shall cause not permit any of its Subsidiaries not to, during the Interim Perioddirectly or indirectly, including by merger, consolidation or otherwise:
(a) change other than as may be required under existing written Contracts and the organizational documents of the Company and its Subsidiaries which have been previously made available to Parent (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for dividends by a wholly owned Subsidiary of the Company to its parent, (ii) purchase, redeem or otherwise acquire shares of capital stock or other equity interests of the Company or its Subsidiaries or any options, warrants, or rights to acquire any such shares or other equity interests, other than in the case of shares withheld in respect of required withholding Taxes in connection with the exercise of Company Options, the vesting of Company Restricted Shares or the vesting or delivery of other awards issued under the Company Stock Plan, or (iii) split, combine, reclassify or otherwise amend the certificate terms of incorporation, bylaws any of its capital stock or other organizational documents equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or other equity interests; 30
(b) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any shares of its capital stock or other equity interests or any securities convertible into, or exchangeable for, or any rights, warrants or options to acquire, any such shares or other equity interests, or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock of the Company or any of its Subsidiaries except (i) on a deferred basis or other rights linked to the value of Shares, including pursuant to Contracts as in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact effect on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer date hereof (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares Common Shares upon the exercise of Company Options outstanding on March 31, 2011 in accordance with their capital stock, or split, combine or reclassify any shares of their capital stock (except terms as in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestseffect on such date);
(c) except as otherwise permitted amend, authorize or not restricted by this Section 8.01 enter into, assume, assign, partially propose to amend its certificate of incorporation or completely amend by-laws (or modify any material term of similar organizational documents) or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a)the Rights Agreement;
(d) sell, transfer, lease, pledge directly or otherwise encumber, abandon, cancel indirectly acquire or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business agree to acquire (i) not by merging or consolidating with, purchasing an equity interest in excess or a portion of $5,000,000 the assets of, making an investment in the aggregateor loan or capital contribution to or in any other manner, any corporation, partnership, association or other business organization or division thereof or (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between assets that are otherwise material to the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as directly or indirectly sell, lease, license, sell and leaseback, abandon, mortgage or otherwise required by Law encumber or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance subject to any key employee Lien or manager otherwise dispose in whole or in part of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiariesmaterial properties, assets or rights or any other individual who is providing or will provide services to the Company or any of its Subsidiariesinterest therein, other than any employee with annual base compensation of less than $1,000,000 except sales, leases, licenses and encumbrances in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization capitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger)reorganization;
(g) make (i) incur, create, assume or otherwise become liable for, or repay or prepay, any capital expenditures (Indebtedness, individually or commitment to make any capital expenditures) in the aggregate, in excess of $1,000,000 1,000,000, or amend, modify or refinance any Indebtedness or (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(hii) make any loans, advances or capital contributions to, or investments in, any other Person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company, individually or in the aggregate, in excess of $500,000;
(h) incur or commit to incur any capital expenditure or authorization or commitment with respect thereto that, individually or in the aggregate, are in excess of $1,000,000;
(i) pay, discharge, compromise, settle or agree to settle, or satisfy any claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than (A) as required by their terms as in effect on the date of this Agreement of claims, liabilities or obligations reflected or reserved against in the most recent audited financial statements (or the notes thereto) of the Company included in the Company SEC Documents filed not less than five (5) Business Days prior to the date hereof (excluding, with respect to such time frame, any filings on Form 10-Q during such five (5) Business Day period) (for amounts not in excess of such reserves), and (B) claims, liabilities or obligations not in excess of $500,000 individually or $1,000,000 in the aggregate; (ii) cancel any Indebtedness in excess of $100,000 individually or $250,000 in the aggregate or (iii) waive, release, grant or transfer any right of significant value;
(j) (i) commence any Action (other than an Action as a result of an Action commenced against the Company or any of its Subsidiaries), or compromise, waive any benefits of, settle or agree to settle any Action (including any Action relating to this Agreement or the transactions contemplated hereby) relating to the Persons set forth on Section 6.1(j)(i) of the Company Disclosure Letter or (ii) commence any Action (other than an Action as a result of an Action commenced against the Company or any of its Subsidiaries), or compromise, waive any benefits of, settle or agree to settle any Action (including any Action relating to this Agreement or the transactions contemplated hereby) relating to any other Person other than, in relation to the Company’s Subsidiariescase of this clause (ii), compromises, settlements or agreements in the ordinary course of business consistent with past practice that involve only the payment of money damages not in excess of $500,000 individually or between $1,000,000 in the Company and its Subsidiaries;
(i) amend aggregate, in a manner materially detrimental to any case without the imposition of any equitable relief on, or the admission of wrongdoing by, the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company change its financial or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial Tax accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiariespractices, except insofar as may have been required by a change in GAAP or applicable Law, IFRS or GAAP;revalue any of its material assets; 31
(ol) fail to maintain, cancel except as may be required by Law or materially change coverage under any insurance policy as in form the ordinary course of business consistent with past practice and amount equivalent does not result in all material respects to the insurance coverage maintained with respect liability to the Company or any Subsidiaries which would result in aggregate liabilities in excess of its Subsidiaries $500,000, in the aggregate, settle or their assets compromise any material liability for Taxes or properties as of surrender any right to claim a material Tax refund (including any such refund to the extent that it is used to offset or otherwise reduce Tax liability), amend any material Tax Return, make any material Tax election or take any material position on any material Tax Return filed on or after the date hereofof this Agreement or change any method of accounting for Tax purposes, or enter into any closing agreement, material Tax allocation agreement, Tax sharing agreement or Tax indemnity agreement;
(pm) fail change its fiscal year;
(i) grant any current or former director, officer, employee or independent contractor any increase in a material manner compensation, bonus or other benefits, or any such grant of any type of compensation or benefits to manage its working capital any current or former director, officer, employee or independent contractor not previously receiving or entitled to receive such type of compensation or benefit, or pay any bonus of any kind or amount to any current or former director, officer, employee or independent contractor, in each case other than (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventoryexcept with respect to stock options, stock appreciation rights, performance units, restricted stock or other stock-based or stock-related awards) in the ordinary course of business consistent with past practicepractice with respect to any employee whose annual cash compensation does not exceed $100,000, (ii) grant or pay to any current or former director, officer, employee or independent contractor any severance, change in control or termination pay, or modifications thereto or increases therein, other than pursuant to arrangements outstanding on the date hereof, in accordance with their terms as in effect on such date, (iii) pay any benefit or grant or amend any award (including in respect of stock options, stock appreciation rights, performance units, restricted stock or other stock-based or stock-related awards or the removal or modification of any restrictions in any Company Plan or awards made thereunder) except as required to comply with any applicable Law or any Company Plan in effect as of the date hereof or for grants (except with respect to stock options, stock appreciation rights, performance units, restricted stock or other stock-based or stock-related awards) made to newly hired employees in the ordinary course of business with respect to any employee whose annual cash compensation does not exceed $100,000, (iv) adopt, enter into, amend, modify or terminate any collective bargaining agreement or other labor union contract, (v) take any action to accelerate the vesting or payment of any compensation or benefit under any Company Plan or other Contract, other than as required pursuant to this Agreement or any Company Stock Plan or Contract outstanding on the date hereof or award issued thereunder prior to the date hereof or (vi) adopt any new employee benefit plan or arrangement or amend, modify or terminate any existing Company Plan, in each case for the benefit of any current or former director, officer, employee or independent contractor, other than (A) as required by applicable Law (B) as would not result in a material increase in the cost of maintaining any existing Company Plan or, in the case of any new plan or arrangement (other than with respect to stock options, stock appreciation rights, performance units, restricted stock or other stock-based or stock-related awards), would not result in any material increase in cost and does not apply to any employee whose annual cash compensation does not exceed $100,000;
(o) fail to keep in force insurance policies or replacement or revised provisions regarding insurance coverage with respect to the assets, operations and activities of the Company and its Subsidiaries as currently in effect;
(p) renew or enter into any non-compete, exclusivity, non-solicitation or similar agreement that would restrict or limit, in any material respect, the operations of the Company or any of its Subsidiaries;
(q) adopt, enter into, supplement, waive any benefits of, or agree to modify or amend in any respect, or fail to enforce or renew, terminate, or consent to any matter with respect to which its consent is required under, any confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is a party or any other Contract or series of related Contracts that would constitute a Material Contract;
(r) adopt, enter into, amend, modify or supplement any Affiliate Transaction;
(s) enter into any new line of business outside of its existing business (except as otherwise may be permitted pursuant to this Section 6.1); 32
(t) enter into any new lease or amend the terms of any existing lease of real property that would require payments over the remaining term of such lease in excess of $100,000;
(u) take any action (or omit to take any action) if such action (or omission) could reasonably be expected to result in any of the Offer Conditions or any conditions to the Merger set forth in Article VII not being satisfied; or
(qv) authorize any of, or commit commit, resolve or agree to do take any action prohibited under this Section 8.01of, the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (CKX, Inc.)
Conduct of Business. From the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except Except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries Law, as set forth on Schedule 5.1 or as otherwise consented to by RMG II in writing by the Buyer (which such consent shall may not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), from the date hereof through the Closing, each Seller covenants and agrees that it shall use commercially reasonable efforts Reasonable Efforts to (i) conduct and operate its business the portion of the Business that it conducts, in all material respects in the ordinary course of business consistent with its past practice, including to preserve the goodwill practice and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors each Seller covenants and creditors and others having material business relationships with agrees that it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Periodshall:
(a) change or amend maintain the certificate of incorporation, bylaws or other organizational documents of the Company or any of Acquired Assets within its Subsidiaries except (i) in the case of the Company, for any such change or amendment made control in the ordinary course of business and which will not have an material adverse impact on repair and continue normal maintenance with respect thereto, normal wear and tear excepted;
(b) continue to make the Company’s ability minimum capital expenditures necessary to perform its obligations under this Agreement or meet health and safety requirements and to consummate preserve and maintain the Transactions, (ii) in the case operations of the Company’s Subsidiariesportion of the Business that it conducts;
(c) use its Reasonable Efforts to preserve the present business operations, for organization and goodwill of the portion of the Business that it conducts;
(d) not sell, assign, transfer, encumber, mortgage or pledge any such change of the Acquired Assets, other than in connection with Permitted Liens or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreementon customary terms;
(be) except in the ordinary course of business in relation to the Company’s Subsidiaries not amend, modify, terminate or grant any waiver under, any Assumed Contract, other than (iA) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its SubsidiariesCompany¶s current Accommodation Agreements with General Motors Corporation, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) Chrysler Motors LLC and Chrysler Canada Inc. and Android Industries or (ivB) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(ef) except as otherwise required by Law not incur any Indebtedness (other than debtor-in-possession financing or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopttrade indebtedness, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practiceincluding customer financial accommodations);
(fg) (i) fail to maintain its existencenot sell, (ii) enter into a new material line of business assign, transfer, lease or license (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation licenses to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than customers in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company Intellectual Property or abandon or allow to lapse any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 rights in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereofCompany Intellectual Property;
(h) make take any loans, advances action or capital contributions to, omit to take any action that would cause the representations and warranties contained in Article III to be untrue or investments in, incorrect in any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;material respect.
(i) amend No Seller shall be in a manner materially detrimental breach of this Section 5.1 if such Seller could not reasonably have acted otherwise without material detriment to the Company Business or without foregoing a material benefit to the Business or if it was beyond the reasonable control of such Seller to prevent any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization the actions listed in this Section 5.1 from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;being taken.
(j) except, in relation to If the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect Buyer has not responded within 10 business days after receipt of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, request for consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into by a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement Seller with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiariesactions in this Section 5.1, except insofar as may the Buyer shall be deemed to have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects consented to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01proposed action.
Appears in 1 contract
Samples: Asset Purchase Agreement
Conduct of Business. From and after the date of this Agreement until hereof and to the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries toClosing, except as expressly otherwise specifically contemplated by this Agreement or as Purchaser shall otherwise consent in writing, which consent 88 shall not be unreasonably withheld, Pfizer agrees that it will conduct the Business, and will cause the Business to be conducted, in the ordinary and usual course consistent with past practice, and use its reasonable best efforts to preserve intact the Business and related relationships with customers, suppliers and other third parties and keep available the services of the present Employees. From and after the date hereof and to the Closing, except as otherwise specifically contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II Purchaser shall otherwise consent in writing (writing, which consent shall not be unreasonably conditioned, withheld, delayed and except as may be necessary or denied)advisable, use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent sole discretion of Pfizer, to remove the Excluded Assets and except for the internal reorganization and refinancing matters as described in Schedule 7.2 and except for the execution of third party foreign exchange hedging contracts with past practicea notional value not to exceed $300,000,000 and a duration not to exceed ninety (90) days to replace intercompany arrangements, including to preserve Pfizer covenants and agrees that it shall cause the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Conveyed Subsidiaries and their respective businessesSubsidiaries and the Asset Selling Corporations, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance each case with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditionedBusiness, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any maintain insurance coverage at levels consistent with presently existing levels so long as such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement89 insurance is available at commercially reasonable rates;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) makenot incur, declare, set aside create or pay assume any dividend or distribution payable in cash, stock, property or otherwise Lien with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (asset other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestsPermitted Encumbrances;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey acquire or dispose of any assets, properties or business assets outside of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(d) not amend any term of, or waive any right under, any Material Contract or enter into any contract, agreement or other arrangement of the type referenced in Section 5.12(a)(i)-(vi);
(e) not change or amend the charter or bylaws of any Conveyed Subsidiary (or a Subsidiary of any Conveyed Subsidiary);
(f) (i) fail to maintain its existencenot issue, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses)sell, (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sellpledge, transfer, licenserepurchase or redeem or propose to issue, assignsell, fail to maintain pledge, transfer, repurchase or otherwise dispose redeem any shares of capital stock of any Conveyed Subsidiary (or encumber a Subsidiary of any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of businessConveyed Subsidiary), or securities convertible into or exchangeable or exercisable for, or options with respect to, or warrants to purchase or rights to subscribe for, shares of capital stock of any Conveyed Subsidiary (vi) adopt or enter into a plan Subsidiary of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the MergerConveyed Subsidiary);
(g) make not settle any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
litigation listed on Schedule 90 2.2(m); and 91 (h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation not agree to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or take any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01foregoing actions.
Appears in 1 contract
Conduct of Business. From the date of this Agreement hereof until the earlier of the Closing Completion Date and the termination of this Agreement (as defined in accordance with its terms section 6.5 (the “Interim Period”Completion)), the Company shall, and Alcon shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including practice and use its reasonable best efforts to (x) preserve the goodwill and intact its present business organization, (y) keep available the services of its officers, employees and consultants and (z) maintain relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors suppliers and others having material significant business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeesit. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including Merger Agreement, without the amendment prior written consent of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing Novartis (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company Alcon shall not, and the Company nor shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or it permit any of its Subsidiaries except subsidiaries to do or permit to be done any of the following, save for the implementation of decisions taken or ratified by the Alcon Board prior to the date of this Agreement that are set forth on Exhibit 5.3 hereto:
a) amend its Articles of Association (other than amendments of its Articles of Association reflecting the issuance of Alcon Shares in 2010 under the Incentive Plan), Organizational Regulations or any other organizational document (whether by merger, consolidation or otherwise);
b) (i) in issue, sell or otherwise deliver, or authorize the case issuance, sale or other delivery of, any Alcon securities or securities of any of its subsidiaries, other than (aa) the Company, for any such change or amendment made in the ordinary course issuance of business and which will not have an material adverse impact Alcon Shares pursuant to Awards outstanding on the Company’s ability date hereof under the Incentive Plan, or (bb) the issuance of Awards for the performance year 2010, consistent with past practice, to perform its obligations under this Agreement be approved or to consummate ratified by the TransactionsAlcon Board in February, 2011, or (ii) in the case amend any term of the Company’s Subsidiaries, for any such change Alcon security or amendment made in the ordinary course securities of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company its subsidiaries (whether by merger, consolidation or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(aotherwise);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant acquire any material increase in compensation, benefits assets or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more property other than $150,000, except (aa) in the ordinary course of business consistent with past practice or (iibb) adoptas required by contracts or agreements in effect on the date hereof; or (ii)(aa) sell, enter into lease, license, dispose of or materially amend otherwise transfer any Company Benefit Plan material assets or property, other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, practice or as required by existing contracts or agreements in effect on the date hereof or (ivbb) hire sell, assign, license or otherwise transfer any employee of material intellectual property owned by or licensed to Alcon except pursuant to contracts or agreements in effect on the Company date hereof;
d) incur, guarantee or otherwise become liable for any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, indebtedness for borrowed money other than in the ordinary course of business and in amounts and on terms consistent with past practice;
e) create or incur any employee with annual base compensation of less lien on any material assets or property other than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement or arrangement that limits or otherwise restricts the ability of the Company in any material respect Alcon or any of its Subsidiaries to engage subsidiaries (or compete that could, after Completion, limit or otherwise restrict in any material respect Novartis, Alcon or any of their respective subsidiaries or any successor thereto) from engaging or competing in any line of business, in any location or enter into with any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of businessperson;
(li) waivesettle, releaseor propose to settle, compromiseany action, settle suit, investigation, proceeding or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business claim that is material to Alcon and its subsidiaries taken as a whole or that otherwise do not exceed $10,000,000 in relates to the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) transactions contemplated hereby or (ii) intentionally waive, release or assign any material right or claim;
h) institute (i) any amendment or termination of any employee benefit plan, except in as required by law, or adoption of any new employee benefit plan (it being understood that Alcon shall be at liberty to convert the ordinary course former Nestlé pension plans, as part of businessthe separation from Nestlé and within the committed timelines previously agreed to or to be agreed to by Nestlé and Alcon, amendinto either (a) a free-standing Alcon pension plan, restate or modify any terms of (b) if agreed with Novartis, a Novartis pension plan) or any agreement with respect to any outstanding material Indebtedness;
(n) make any individual employment, severance, change in financial accounting methods, principles control or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
consulting agreement (o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) other than in the ordinary course of business consistent with past practice); or (ii) enter into any new labor or collective bargaining agreement or terminate any such existing agreement, except as required by law or by the terms thereof; or
(qi) authorize or resolve, commit or agree to do any action prohibited under this Section 8.01of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Alcon Inc)
Conduct of Business. From the date of this Agreement hereof through the Closing Date, or until the earlier of the Closing Date and the termination of transaction contemplated hereby shall have been terminated as provided in this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries toAgreement, except as expressly otherwise provided for in or contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or except as consented to or approved by RMG II Buyers in writing writing, Sellers covenant as follows:
(which consent a) the Selling Companies and Subsidiaries shall not be unreasonably conditionedoperate their businesses in the ordinary and usual course in all material respects in accordance with past practice, withheldand shall maintain their records and books of account in a manner that fairly and accurately reflects their income, delayed or denied)expenses, assets and Liabilities in accordance with past practice and United States generally accepted accounting principles consistently applied, and shall use commercially reasonable efforts to (i) conduct operate and operate its business maintain their businesses in the ordinary course consistent with past practice, including such a manner as is designed to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of avoid any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact effect on the any Selling Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Selling Companies and Subsidiaries shall not:
(i) makemake any investment of a capital nature in any other firm or corporation, declareeither by the purchase of stock or securities, set aside by contributions to capital or pay by property transfers or otherwise, or purchase any dividend or distribution payable in cash, stock, material amount of property or otherwise assets of any other individual, firm or corporation;
(ii) waive or release any rights of material value or allow or effect any sale, assignment, abandonment or transfer by the Selling Companies or Subsidiaries of, or any failure to renew any registration relating to, any rights with respect to any capital stock the Selling Companies' or other equity interests in any of the Company Subsidiaries' Intellectual Property or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, License Agreements; or
(iii) authorize for issuance, issue, sell, transfer close or discontinue operations in any plants or any other facilities (other than transfers of Company Stock held by former employees pursuant to plans being implemented as of the Company or its Subsidiaries date hereof with respect to existing employeesfacilities not included as Acquired Assets), pledgeor knowingly permit any material change in the business of the Selling Companies, encumberthe Subsidiaries or in relationships with material suppliers, dispose of customers, landlords or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestsothers;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or as otherwise provided for in or contemplated by this Agreement, the Selling Companies and the Subsidiaries shall not:
(i) sell, lease, transfer or otherwise dispose of or make any commitment to sell, lease, transfer or otherwise dispose of Acquired Assets or assets of the Subsidiaries;
(ii) acquire or make any commitment to acquire any material assets as to the Subsidiaries, or that would constitute Acquired Assets or create Assumed Liabilities;
(iii) except for the cancellation of all intercompany accounts with LifeStyle and its affiliates outstanding at the Closing Date, cancel, compromise, release or assign any debts owed to it that are Acquired Assets or those owed to the Subsidiaries;
(iv) hire create or permit to exist any employee new security interest, lien or encumbrance on the Acquired Assets or Assumed Liabilities or the assets of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, Subsidiaries other than Permitted Liens;
(v) (i) incur or assume any employee with annual base compensation of less than $1,000,000 long-term debt or, except in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existenceor under existing lines of credit, incur or assume any short-term debt; (ii) enter into a new material line assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for any liability of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), another party; or (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, person (other thanthan loans or advances to the Subsidiaries and customary loans or advances to customers or employees in accordance with past practices), in relation each case to the Company’s Subsidiariesextent such debt, in the ordinary course guaranty, loan or advance would be an Assumed Liability or a liability of business consistent with past practice or between the Company and its Subsidiariesa Subsidiary;
(ivi) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle contract or compromise commitment of any claim kind not terminable on notice of sixty (60) days or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxesless, or enter into any Tax sharing lease, license, royalty or similar union agreement, in each case if such electionor any joint venture, change, amendment, agreement, settlement, consent partnership or other action could, individually similar arrangement or form any other new arrangement for the conduct of their businesses to the extent any of the foregoing would result in the aggregate, reasonably be expected to have the effect any Assumed Liability hereunder or a liability of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closinga Subsidiary;
(kvii) enter into allow or effect any agreement that restricts material change in the ability historical policies of the Company Selling Companies or Subsidiaries regarding the prices, credit terms or other terms of sale with respect to any of its their merchandise, commodities, products or product lines;
(viii) allow or effect any material change in the level of inventory of the Selling Companies or Subsidiaries for the time of year involved;
(ix) allow or effect any material change in (x) any investment, accounting, financial reporting, inventory or tax practice or policy of the Selling Companies or Subsidiaries or (y) any method of calculating any bad debt, contingency or other reserve of the Selling Companies or Subsidiaries for accounting, financial reporting or tax purposes;
(x) incur any Liabilities that would be required to engage be reflected or compete reserved against in a consolidated balance sheet of the Selling Companies prepared in accordance with U.S. generally accepted accounting principles consistently applied.
(d) except as required by law or contractual obligations or other understandings or arrangements existing on the date hereof, and other than salary increases and bonuses consistent with past practice, the Selling Companies and Subsidiaries shall not:
(1) increase in any line of businessmanner the compensation or fringe benefits of, or enter into any new bonus or incentive agreement that restricts the ability of the Company or arrangement with, any of its Subsidiaries to enter into a new line of businesstheir directors or officers or other key employees;
(l2) waivepay or agree to pay any pension, releaseretirement allowance or other employee benefit to any such director, compromiseofficer or key employee, settle whether past or satisfy present if such payment or agreement would be an Assumed Liability of Buyer hereunder or liability of a Subsidiary;
(3) enter into any pending new employment, severance, management, consulting or threatened Action other compensation agreement with any director, officer or compromise key employee, whether past or settle present; or,
(4) commit itself to any additional bonus, profit sharing, compensation, termination, stock option, stock appreciation right, restricted stock, performance unit, pension, retirement, deferred compensation, employment, severance or other employee benefit agreements, trusts, plans, funds or other arrangements of or for the benefit or welfare of any employee of the Selling Companies or Subsidiaries, or (except as may be required by law) terminate, amend or commit itself to terminate or amend any of such plans, funds or similar arrangements in existence on the date hereof if such payment or agreement could become a liability of Buyer hereunder or commence a liability of a Subsidiary;
(e) provided, however, that in no event shall Sellers be deemed to have breached or violated any Actioncovenant contained in this Section by reason of any action taken, other than in at the ordinary course express request of business Sellers, by any officer, director or that otherwise do not exceed $10,000,000 in affiliate of Buyers, or at the aggregate;
(m) (i) incur, guarantee request or otherwise become liable for (whether directly, contingently or otherwise) direction of any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01such person.
Appears in 1 contract
Samples: Asset Purchase Agreement (Furniture Brands International Inc)
Conduct of Business. From the date Seller and Buyer shall refrain from taking ------------------- any action which would render any of this Agreement until the earlier their respective representations and warranties inaccurate as of the Closing Date and the termination of Date, except for changes therein permitted by this Agreement or resulting from transactions carried out pursuant to this Agreement. Each party shall promptly notify the other of any action, suit, proceeding or investigation that may be threatened, brought, asserted or commenced of which it becomes aware that would have been listed, in accordance with its terms the case of Seller, on Schedule 2.9 hereto or, in the case of Buyer, on Schedule 3.3 hereof, ------------ ------------ if such action, suit, proceeding or investigation had arisen or were in existence on or prior to the date hereof. Seller shall act diligently and reason ably (a) to preserve the “Interim Period”)Purchased Assets intact, (b) to keep available, if so requested by Buyer, the Company shall, services of the present personnel of the Centers and shall cause its Subsidiaries to, except (c) to preserve the goodwill of suppliers and customers of the Centers and others having business relations therewith. Except as expressly otherwise contemplated by this Agreement, as required by applicable Law Agreement or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent by Buyer, Seller shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct the business and operate its business operations of the Centers in all respects only in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeessubstantially as presently operated. Without limiting the generality of Notwithstanding the foregoing, except as expressly otherwise contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditionedby Buyer, withheld, delayed or denied), the Company Seller shall not, with respect to the Purchased Assets, sell, lease, transfer or otherwise dispose of (including transfers to any Affiliates of Seller), or mortgage or pledge, or impose or suffer to be imposed any Lien on, any Purchased Assets. In addition, Seller shall ensure that all liabilities and the Company obligations to vendors, lenders and other creditors are current and not past due (which shall cause its Subsidiaries not tomean, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness trade payables incurred in the ordinary course of business as permitted by this Agreement, paid in full within seventy-five (which for 75) days of the avoidance date of doubtinvoice) and Seller and the Stockholders shall indemnify and hold Buyer harmless against all past due obligations of the Centers as of the Closing incurred prior to Closing. Additionally, includes pending the Closing, and except as otherwise specifically contemplated by this Agreement or agreed to in writing by Buyer, Seller:
(i) shall not issue or sell rights (including, without limitation, conversion rights), options, warrants to purchase or to subscribe to, or enter into any refinancing arrangement or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement contract with respect to any outstanding material Indebtednessof it securities;
(nii) make shall not declare, pay or set aside for payment any change dividend or other distribution in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or respect to any of its Subsidiariessecurities or directly or indirectly redeem, except insofar as may have been required by a change in Law, IFRS purchase or GAAPotherwise acquire any shares of its securities;
(oiii) fail shall not enter into contracts or commitments involving in excess of $10,000 in the aggregate;
(iv) will not grant any increase in compensation to maintainany officer, cancel employee or materially change coverage under agent or enter into or amend any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company stock option plan or any employment or consulting agreement;
(v) shall not dispose of or encumber any of its Subsidiaries or their assets or properties as of the date hereofand assets;
(pvi) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and shall not merge or consolidate with any other corporation, or acquire any stock, business, or substantially all of the payment property or assets of accounts payable and the management of inventory) in the ordinary course of any other person, firm, association, corporation or other business consistent with past practiceorganization; orand
(qvii) authorize shall not do any act or commit or agree omit to do any action prohibited act which with or without the giving of notice or the passage of time, or both, would result in a breach of or default under this Section 8.01any contract, commitment or obligation of the Seller.
Appears in 1 contract
Samples: Asset Purchase Agreement (Medical Resources Inc /De/)
Conduct of Business. From the date of this Agreement until through the earlier of the Closing Date and the or valid termination of this Agreement in accordance with its terms (the “Interim Period”)pursuant to Article X, the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries Agreement or as consented to by RMG II Acquiror in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent and substantially in accordance with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment set forth on Section 6.1 of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries Disclosure Letter or as consented to by RMG II Acquiror in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Periodexcept as otherwise contemplated by this Agreement:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) except as expressly contemplated otherwise required by this AgreementLaw;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside make or pay declare any dividend or distribution payable to the stockholders of the Company or make any other distributions in cash, respect of any of the Company’s or any of its Subsidiary’s capital stock, property except for dividends by any of the Company’s wholly-owned Subsidiaries made in the ordinary course, (ii) split, combine, reclassify, recapitalize or otherwise with respect to amend any terms of any shares or series of the Company’s or any of its Subsidiary’s capital stock or (iii) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, membership interests or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or materially adversely modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a)Section 4.12 of the Company Disclosure Letter or any Real Property Lease, except in the ordinary course of business;
(d) sell, assign, transfer, leaseconvey, pledge lease or otherwise encumber, abandon, cancel or convey or dispose of any assetsmaterial assets or properties, properties or business of including, without limitation, the Company or any of its Subsidiaries, including Owned Real Property and the Leased Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) acquire any ownership interest in any real property;
(i) except as otherwise required by Law or Law, existing Company Benefit PlansPlans or the Contracts listed on Section 4.12 of the Company Disclosure Letter, policies take any action with respect to the grant of any severance, retention, change in control or Contracts termination or similar pay (ii) make any material change in the key management structure of the Company or any of its Subsidiaries, including the hiring of additional officers or the termination of existing officers, other than in effect on the date ordinary course of this Agreement, business; (iiii) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) business, terminate, adopt, enter into or materially amend any Company Benefit Plan Plan; (iv) increase the compensation, bonus opportunity or other than in the ordinary course remuneration of business any employee, officer, director or other service provider, except, with respect to annual renewalsany employee, (iii) grant officer, director or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee service provider of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with Subsidiaries whose annual base compensation of less than salary does not exceed $1,000,000 250,000, for increases in the ordinary course of business consistent with past practicebusiness; (v) establish any trust or take any other action to secure the payment of any compensation; or (vi) take any action to accelerate the time of payment or vesting of any compensation or benefit;
(fg) (i) fail to maintain its existenceacquire by merger or consolidation with, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses)or merge or consolidate with, (iii) or purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion substantially all of the assets of) any business or , any corporation, partnership, association, joint venture or other business organization or division thereof thereof;
(other than in the ordinary course of business in relation to the Company’s Subsidiaries), (ivh) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets loans or material Intellectual Property pertaining advances to the business any Person, except for advances to employees or officers of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than for expenses incurred in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) except as required by applicable Law, (A) make a material change to any Tax or accounting methods, (B) make, revoke or amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority Tax election, (C) enter into any closing agreement, (D) settle or compromise any material Permit required for the conduct of the business Tax liability of the Company or any of its Subsidiaries, (E) make or otherwise terminate its relationships with surrender any Governmental Authority, customers, suppliers, contractors and other Persons with which it has right to claim a refund of Taxes or (F) consent to any waiver or extension of the statute of limitations applicable to any material business relationsTaxes or any Tax Return;
(j) exceptincur or assume any Indebtedness or guarantee any Indebtedness of another Person, in relation issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company’s SubsidiariesCompany or any Subsidiary or guaranty any debt securities of another Person, other than any Indebtedness or guarantee (x) incurred in the ordinary course of business, business or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including y) incurred between the Company and any of its wholly-owned Subsidiaries or between any of such wholly-owned Subsidiaries) after the Closing;
(k) discharge any secured or unsecured obligation or liability (whether accrued, absolute, contingent or otherwise) which individually or in the aggregate exceed $500,000), except as otherwise contemplated by this Agreement;
(l) issue any additional shares of Common Stock or securities exercisable for or convertible into Common Stock other than in connection with the exercise of Options outstanding on the date hereof or grant any additional stock appreciation rights with respect to Common Stock not outstanding on the date hereof;
(m) form or cause to be formed any new Subsidiary of the Company;
(n) waive, release, assign, settle, compromise or otherwise resolve any material investigation, claim (excluding customer claims in the ordinary course of business that have not resulted in litigation), action, litigation or other legal proceedings, except where such waivers, releases, assignments, settlements or compromises involve only the payment of monetary damages (as well as related non-substantive incidental provisions and other remedies or obligations that are not material in the context of the applicable resolution);
(o) grant or acquire, agree to grant to or acquire from any Person, or dispose of, abandon or permit to lapse any rights to any material Intellectual Property and, other than in the ordinary course of business and pursuant to a customary non-disclosure or non-use agreement, disclose or agree to disclose to any Person (other than Acquiror or any of its representatives) any trade secret or any other material confidential or proprietary know-how or process;
(p) make or commit to make capital expenditures (which for the avoidance of doubt shall not include capital leases) other than as set forth on Section 4.32 of the Company Disclosure Letter; or
(q) enter into any collective bargaining agreement that restricts or similar agreement; or
(r) (i) limit the ability right of the Company or any of its Subsidiaries to engage or compete in any line of businessbusiness or in any geographic area, to develop, market, sell or distribute products or services, or enter into to compete with any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) Person or (ii) except in the ordinary course of business, amend, restate grant any exclusive distribution or modify any terms of or any agreement with respect similar rights to any outstanding material IndebtednessPerson;
(ns) make pay accounts payable prior to the stated maturity (other than for a valid and legitimate business reason) or discharge any change obligor from its obligations under any account receivable other than upon payment in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results full of operations of the Company or any of its Subsidiaries, except insofar as may have been required by all amounts payable thereunder (other than for a change in Law, IFRS or GAAPvalid and legitimate business reason);
(ot) fail to maintainenter into any agreement, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree otherwise become obligated, to do any action prohibited under this Section 8.016.1.
Appears in 1 contract
Samples: Merger Agreement (GP Investments Acquisition Corp.)
Conduct of Business. From The Company covenants and agrees that between the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries toEffective Time, except as expressly contemplated permitted or required by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries Agreement or as otherwise consented to by RMG II Acquiror in writing (which consent shall not be unreasonably conditionedwriting, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall notSubsidiaries, and the Company shall cause its Subsidiaries not todirectors, during the Interim Period:
(a) change or amend the certificate of incorporationofficers, bylaws agents, employees or other organizational documents persons acting on behalf of the Company or any of its Subsidiaries except Subsidiaries, shall:
(ia) in the case of the Companycarry on its business in, for any such change or amendment made in and only in, the ordinary course course, in substantially the same manner as heretofore conducted, and use commercially reasonable efforts to preserve intact its present business organization, maintain its properties in good operating condition and repair (normal wear and tear excepted), keep available the services of its present officers and employees, and preserve its relationship with customers, suppliers, and others having business dealings with it, with the goal and which intent that its goodwill and ongoing business will not have an be in all material adverse impact on respects unimpaired following the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;Closing.
(b) except in not amend its charter or bylaws (or other similar organizational or governing instruments);
(c) not authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the ordinary course issuance or granting of business in relation options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities convertible into or exchangeable for any stock or any equity equivalents (including, any stock options or stock appreciation rights); provided, however, that the Company’s Subsidiaries Company (i) makemay offer its usual and customary stock options pursuant to the IDS Plan to purchase up to a total of 25,000 shares of Company Common Stock at an exercise price of no less than the Company Share Price to newly hired employees of the Company between the date hereof and the Closing; and (ii) may issue the securities underlying the Convertible Securities pursuant to their terms;
(d) other than as contemplated by the conversion rights of the Class A Common Stock, Class B Common Stock, or the Convertible Securities, not (i) split, combine or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution payable (whether in cash, stock, stock or property or otherwise with any combination thereof) in respect to any of its capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, stock; (iii) authorize for issuancemake any other actual, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company constructive or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security deemed distribution in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) shares of its capital stock or otherwise make any payments to shareholders in their capacity as such; or (iv) repurchaseredeem, redeem repurchase or otherwise acquire, acquire any of its securities or offer to repurchase, redeem or otherwise acquire, any shares securities of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (White Electronic Designs Corp)
Conduct of Business. From the date of this Agreement hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries toterms, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (ia) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly otherwise specifically contemplated by this Agreement (including the amendment Restructuring Transaction), (b) required by applicable Law, (c) set forth in Section 7.2 of the terms of the CCPS substantially in the form set out in Exhibit EDisclosure Letter or (d) consented to or approved by either Buyer (such consent not to be unreasonably withheld, conditioned or delayed), the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by Sellers shall cause the Company to release or otherwise discharge any guarantee or other credit support granted by operate the Company or any Subsidiary in respect business of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice and in compliance with all applicable Laws and shall use commercially reasonable efforts to preserve intact the relationships and goodwill with third parties with whom it has business relations, including its employees, licensors, customers, distributors and suppliers. Without limiting the generality of the foregoing, from the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with its terms, except as (iiA) adopt, enter into or materially amend any Company Benefit Plan other than in otherwise specifically contemplated by this Agreement (including the ordinary course of business with respect to annual renewalsRestructuring Transaction), (iiiB) grant required by applicable Law, (C) set forth in Section 7.2 of the Disclosure Letter or provide (D) consented to or approved by either Buyer (such consent not to be unreasonably withheld, conditioned or delayed), the Sellers shall cause the Company and its Subsidiaries not to:
(i) propose, authorize or effect any material bonus, severance amendment to or termination payments or benefits to any employee or director change the Organizational Documents of the Company or any of its Subsidiaries;
(ii) issue, except in connection with sell, pledge, allow the promotion, hiring transfer of or firing authorize issuance of any employee Equity Interests of the Company or any of its Subsidiaries or grant any options, warrants, calls, subscriptions or other rights to purchase or obtain any Equity Interests of the Company or any of its Subsidiaries or enter into any agreement for the sale, voting, registration or purchase of any Equity Interests of the Company or any of its Subsidiaries;
(to iii) (A) split, combine or reclassify any the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee Equity Interests of the Company or any of its Subsidiaries, issue or authorize the issuance of any other securities in substitution for such Equity Interests, (B) declare, set aside or pay any dividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of any Equity Interests of the Company if such dividend or other individual who is providing distribution would result in the Company having at Closing (after the payment of the Transaction Expenses) less than five million ($5,000,000) of unrestricted cash or will provide services (C) redeem, repurchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire any Equity Interests of the Company or any of its Subsidiaries;
(iv) make any changes to its accounting principles or practices, other than as may be required by IFRS;
(v) acquire (by merger, consolidation or acquisition of stock or assets or otherwise) any employee with annual base compensation corporation, partnership or other business organization or division thereof or collection of less than $1,000,000 assets constituting all or substantially all of a business or business unit or make any investment in, or loans, advances or capital contributions to, any Person;
(vi) sell, transfer, assign, convey, lease, license, abandon or let lapse, pledge, encumber, or otherwise dispose of its assets, rights, or properties except in the ordinary course of business consistent with past practice;
(fvii) effect or permit a “plant closing,” “mass layoff” or similar event under the WARN Act;
(iviii) fail to maintain its existenceadopt, amend or terminate a Contract with an Employee Representative;
(iiix) enter into a new material line of business create, incur, repay, assume or guarantee any Indebtedness or suffer or permit any Encumbrance (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iiiPermitted Encumbrances) purchase to arise or otherwise acquire (whether by merging be granted or consolidating with created against or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber upon any of the material assets rights, properties or material Intellectual Property pertaining to the business assets, real or personal, tangible or intangible, of the Company or any of its Subsidiaries Subsidiaries;
(x) merge or consolidate or otherwise combine with a value in excess of $1,000,000 (any other than in the ordinary course of business)Person, or (vi) adopt or enter into a plan of complete or partial liquidation, liquidation or authorize or undertake a dissolution, mergerwinding-up, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger)reorganization;
(gxi) make any capital expenditures (or commitment to make any capital expenditures) in excess enter into commitments therefor, excluding replacements of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, equipment in the ordinary course of business consistent with past practice or between any such expenditure or commitment in accordance with the Company and its Subsidiariesprojection set forth in Section 7.2(xi) of the Disclosure Letter;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(mxii) (iA) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintainterminate, cancel or materially change coverage under amend in any insurance policy material respect or take any action that would cause the termination, cancellation, or amendment in form and amount equivalent in all any material respects to the insurance coverage maintained with respect to the Company or of any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) Material Contract other than in the ordinary course of business consistent with past practice; or
provided that such ordinary course of business exception shall not apply to Material Contracts listed or required to be listed in Sections 4.12(a)(ii), (qiii), (vi), (vii), (viii), (xiii) authorize or commit (xv)), (B) enter into, or agree to do take any action prohibited under this Section 8.01.actions that would cause the entry into, any Material Contract (or Contract that would be a Material Contract if in effect as of the date hereof) other than in the ordinary course of business consistent with past practice; provided that (I) the ordinary course of business would not include adopting a most favored nation provision or take or pay pricing or similar terms and
Appears in 1 contract
Samples: Share Purchase Agreement (Centaur Guernsey L.P. Inc.)
Conduct of Business. From and after the date of this Agreement hereof and until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries toClosing, except (i) as set forth on Schedule 7.2 or as otherwise expressly contemplated by this Agreement, Agreement or (ii) as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II Purchasers shall otherwise consent in writing (which consent shall not be unreasonably conditioned, withheld, delayed withheld or denieddelayed), use commercially reasonable efforts Seller agrees that it will conduct the Business, and will cause the Business to (i) conduct and operate its business be conducted, in the ordinary course of business consistent in all material respects with past practice, including to preserve the goodwill practice and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in compliance in all material respects with all Laws applicable Laws, pay or perform all material obligations relating to it the Business as they become due and its Subsidiaries owing in the ordinary course of business, and their respective businesseswill use, assets and cause the Divesting Entities to use, commercially reasonable efforts to preserve intact the Business and related relationships with employees, customers, suppliers, regulators and other third parties. Without limiting From and after the generality of date hereof and to the foregoingClosing, except (i) as set forth on Schedule 7.2 or as otherwise expressly contemplated by this Agreement or (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions ii) as may be reasonably required by the Company to release or Purchasers shall otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II consent in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), Seller covenants and agrees that, with respect to the Company Business, it shall not, and the Company shall cause its Subsidiaries the Divesting Entities not to, during the Interim Period:
(a) change sell, pledge, dispose of, transfer, lease, license, encumber or amend authorize the certificate sale, pledge, disposition, transfer, lease, license or encumbrance of incorporationany assets that are (or would otherwise be) Purchased Assets, bylaws or other organizational documents of the Company or any of its Subsidiaries except than (i) in the case sales of the Company, for any such change or amendment made Inventory in the ordinary course of business and which will not have an consistent in all material adverse impact on the Company’s ability to perform its obligations under this Agreement respects with past practice or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementPermitted Liens;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside acquire any material properties or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (assets that would be Purchased Assets other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice and except for Purchased Assets that would not reasonably be expected to result in the assumption by Purchasers of material Assumed Liabilities at the Closing pursuant to the terms of this Agreement;
(iic) adoptsettle any litigation or material claim or waive any material claims or rights of material value in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Business from and after the Closing;
(d) enter into any material new contract, agreement or commitment that would be an Assumed Contract or renew any Assumed Contract (other than renewals of (x) any agreements set forth on Schedule 7.2, (y) any agreements having a term of less than *** and (z) any agreements that are cancelable upon *** notice without any liability);
(e) terminate, waive any material provision of, or amend or otherwise modify in any material respect any Assumed Contract;
(f) except as may be required pursuant to applicable Law or plans in effect as of the date hereof, enter into into, terminate or materially amend modify *** as such plans relate to any Company Benefit Plan OD Employees or grant any bonuses, salary or wage increase, or otherwise increase the compensation payable to any OD Employee, in each case other than in the ordinary course of business with respect to annual renewalsthat are not targeted at OD Employees;
(g) terminate, (iii) grant reassign, transfer or provide any material bonus, severance or termination payments or benefits to any employee or director of otherwise materially modify the Company or its Subsidiaries, except in connection with the promotion, hiring or firing duties of any employee OD Employee (to the extent permitted by clause (ivin each case other than for cause) of this paragraph) or, other in the ordinary course of business consistent business, hire any individual or transfer any individual so that such individual becomes an OD Employee;
(h) fail to take any material action necessary to protect or maintain the Transferred Intellectual Property or to prosecute any pending applications for Transferred Patents and Transferred Trademark Rights or file any documents or other information or pay any maintenance or other fees related thereto;
(i) dispose of or permit to lapse any rights to any Transferred Intellectual Property;
(j) intentionally disclose or agree to disclose to any Person, other than representatives of the Purchasers or Seller, any material trade secret primarily relating to the Business owned by Seller;
(k) with respect to the Business, (i) make any change in the selling, distribution, advertising, terms of sale or collection practices that is inconsistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority business practices, programs or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, long-term allowances not previously used in the ordinary course of business, or as required by applicable Law(iii) engage in the practice of "channel stuffing" or any similar program, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return activity or other material Tax Returnaction (including any rebate, enter into any agreement with a Governmental Authority with respect to Taxesdiscount, settle chargeback or compromise any claim refund policy or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, practice) that in each case if such election, change, amendment, agreement, settlement, consent is intended or other action could, individually or in the aggregate, would reasonably be expected to have result in a trade buy-in that is materially in excess of normal customer purchasing patterns consistent with past course of dealing with the effect of materially increasing Business during the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates twelve (including 12) months prior to the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of businessdate hereof;
(l) waivecommunicate with any OD Employees regarding the compensation, releasebenefits or other treatment that they will receive from either of the Purchasers in connection with the transactions contemplated hereby, compromise, settle or satisfy unless any pending or threatened Action or compromise or settle any liability or commence any Action, other than such communications have been reviewed and approved in the ordinary course of business or that otherwise do not exceed $10,000,000 advance in the aggregatewriting by Purchasers;
(m) (i) incurterminate, guarantee or otherwise become liable for (whether directlycancel, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of businesspermit to lapse, amend, restate waive or modify any terms of Governmental Authorizations, except as required by any Governmental Authority or any agreement with respect to any outstanding material IndebtednessRegulatory Agency;
(n) make any settlement of or compromise any material Tax liability, change in financial any material respect any Tax election or Tax method of accounting, make any new material Tax election or adopt any material new Tax method of accounting methods, principles that would in each case adversely affect the Purchasers' Tax treatment of any Purchased Asset on or practices materially affecting after the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;Closing; or
(o) fail agree, in writing or otherwise, to maintain, cancel take or materially change coverage under any insurance policy in form and amount equivalent in all material respects to authorize the insurance coverage maintained with respect to the Company or taking of any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01foregoing actions.
Appears in 1 contract
Samples: Asset Purchase Agreement (Valeant Pharmaceuticals International, Inc.)
Conduct of Business. From the date of this Agreement until hereof through the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Closing, Chancellor LA shall use commercially reasonable efforts to cause the Company shall, and shall cause each of its Subsidiaries toSubsidiaries, except as expressly may be necessary to effect the Preliminary Transactions and except as otherwise contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries Agreement or as consented to by RMG II Purchaser or Purchase Parent in writing (which consent will not be unreasonably withheld), to operate its business in the ordinary course and substantially in accordance with past practice and use commercially reasonable efforts not to take any action inconsistent with this Agreement. Without limiting the generality of the foregoing, unless consented to by Purchaser or Purchaser Parent in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to Chancellor LA shall cause the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause each of its Subsidiaries not to, during the Interim Periodexcept as contemplated by this Agreement:
(a) change or amend the certificate its Certificate of incorporationIncorporation, bylaws Bylaws or other organizational documents of the Company or any of its Subsidiaries documents, except as otherwise required by law;
(i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assumeextend, assignmaterially modify, partially terminate or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) renew any Contract of a type required to be listed on Schedule 4.13(a)2.8, except in the ordinary course of business, or (ii) settle or otherwise resolve any financial issue, claim or adjustment under any such Contract;
(c) sell, assign, transfer, convey, lease or otherwise dispose of any material assets or properties, except in the ordinary course of business;
(d) sellexcept as otherwise required by law, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose take any action with respect to the grant of any assets, properties severance or business termination pay (otherwise than pursuant to policies or agreements of the Company or any of its Subsidiaries in effect on the date hereof) which will become due and payable from the Company or any of its Subsidiaries on or after the Closing Date; make any change in the key management structure of the Company or any of its Subsidiaries, including Real Propertyincluding, except for saleswithout limitation, transfers, leases, pledges or other encumbrances or dispositions the hiring of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries additional officers or the Company to secure Indebtedness incurred by the Company or its Subsidiaries terminations of existing officers, other than in the ordinary course of business;
(e) except as otherwise required acquire by Law merger or existing Company Benefit Plansconsolidation with, policies or Contracts merge or consolidate with, or purchase substantially all of the Company assets of, or its Subsidiaries, in effect on the date of this Agreement, (i) grant otherwise acquire any material increase in compensationassets or business of any corporation, benefits partnership, association or severance other business organization or division thereof;
(f) make any material loans or advances to any key employee partnership, firm or manager corporation, or, except for expenses incurred in the ordinary course of business, any individual;
(g) amend any Employee Plan or increase the salary of any management Employee, except in the ordinary course of business;
(h) alter in any material respect the past practices of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant the collection of receivables or provide any material bonus, severance or termination payments or benefits to any employee or director payment of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;payables; or
(i) amend in a manner materially detrimental to the Company or enter into any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiariesagreement, or otherwise terminate its relationships with any Governmental Authoritybecome obligated, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01hereunder; provided, however, that none of the foregoing shall restrict or prohibit the consummation of the Dividend.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amfm Inc)
Conduct of Business. From Pending the Closing Date, and except as otherwise consented to by the Purchaser:
(a) The Seller shall carry on the business of the Branches substantially in the same manner as heretofore, and the Seller shall not, with regard to the Branches, engage in any activities or transactions outside its ordinary course of business as conducted as of the date hereof except for activities or transactions contemplated by this Agreement, provided however, that the Seller need not, in its sole discretion, advertise or promote new or substantially new customer services in the principal market area of the Branches, and further provided that the Seller may, but shall not be required to, maintain the current number of Employees at the Branches.
(b) The Seller shall use its reasonable efforts to preserve its business operation as conducted at the Branches; to prevent a material reduction of the Deposit Liabilities, to preserve for the Purchaser the good will of its customers and others doing business with the Branches, and to exercise reasonable efforts to cooperate with and assist the Purchaser in assuring the orderly transition of such business from the Seller to the Purchaser. Nothing herein shall be construed as requiring the Seller to engage in any activities or efforts outside the ordinary course of business as presently conducted.
(c) Except with the prior written consent of the Purchaser, or as expressly contemplated or permitted by this Agreement, during the period from the date of this Agreement and continuing until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Closing, the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company Seller shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a1) change sell, lease, encumber, or amend the certificate of incorporationotherwise dispose of, bylaws or other organizational documents agree to sell, lease, encumber or otherwise dispose of, any of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementAssets;
(b2) cause the Seller to transfer any Deposit Liabilities including, without limitation, to Seller's or any affiliates' other operations or branches, except in upon the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract unsolicited request of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries depositor in the ordinary course of business;
(e3) except as otherwise required by Law agree to increase the salary, remuneration or existing Company Benefit Planscompensation (including insurance, policies pension or Contracts of other benefit plan) payable or to become payable to the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan Employees other than in the ordinary course of business accordance with respect Seller's customary policies and/or bank-wide changes, or pay or agree to annual renewals, (iii) grant or provide pay any material bonus, severance or termination payments or benefits uncommitted bonus to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, such employees other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past regular bonuses granted based on historical practice;
(f4) hire any new employees at the Branches without Purchaser's consent, which consent shall not be unreasonably withheld;
(i5) fail to maintain its existenceviolate any law, statute, rule, governmental regulation, order or undertaking which violation would have a material adverse effect on the Assets or Liabilities;
(ii6) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing invest in any equity interest in or a substantial portion Fixed Assets on behalf of the assets of) any business Branches, except for commitments made on or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in before the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any date of the material assets Agreement and for replacements of furniture, furnishings and equipment and normal maintenance and refurbishing purchased or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than made in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);; and
(g7) make offer any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained special deposit rate promotion with respect to the Company Deposit Liabilities or any potential accounts except for promotions offered by Seller at all or substantially all of its Subsidiaries branch offices or their assets or properties as promotions that are responsive to actions by competitors within the market area of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01Branches.
Appears in 1 contract
Samples: Branch Purchase Agreement (Premier Financial Bancorp Inc)
Conduct of Business. From During the period from the date of this ------------------- Agreement to the Closing Date, or the date, if any, on which this Agreement is earlier terminated, and except as otherwise authorized by the Buyer, Bridgestone, the LLCs and Label Systems, Inc. shall operate their businesses in the normal course and in a manner consistent with prudent business practice. Sellers shall use their best efforts to maintain satisfactory relationships with licensors, suppliers, distributors, lessors, customers, and others having business relationships with Bridgestone, the LLCs or Label Systems, Inc. Except as may be first approved by Buyer, or as is otherwise permitted or required by this Agreement, Sellers will cause Bridgestone, the LLCs and Label Systems, Inc. to refrain from making any pension, retirement or insurance payment or arrangement, and from agreeing to pay any bonus to accrue after the date of this Agreement until the earlier of the Closing Date to or with any such persons except those that may have already been accrued; and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law refrain from entering into any contract or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their termscommitment, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issuebuy, sell, or transfer (other than transfers of Company Stock held by former employees of the Company inventory or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000equipment, except in the ordinary course of business consistent with past practice (ii) adoptbusiness. During the period from the date of this Agreement to the Closing Date, enter into or materially amend any Company Benefit Plan other than in Buyer and Sellers shall confer on a regular and frequent basis to report material operational matters and to report the ordinary course general status of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing ongoing operations. Sellers shall notify Buyer of any employee (to unexpected emergency. Sellers shall not change the extent permitted by clause (iv) of this paragraph) in the ordinary normal course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of Bridgestone, the Company LLCs and Label Systems, Inc. or the operation of their properties without the prior consent of the Buyer. Sellers shall notify Buyer promptly of any of its Subsidiariesgovernmental complaints, investigations, or otherwise terminate its relationships with any Governmental Authorityhearings (or communications indicating that the same may be contemplated), customersadjudicatory proceedings, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of businessbudget meetings, or as required by applicable Law, make or change submissions involving any material Tax election or adopt or change any material Tax accounting methodproperty of Bridgestone, file any material amendment the LLCs and Label Systems, Inc., keep Buyer fully informed of and allow Buyer to any income Tax Return or other material Tax Returnparticipate in such events, enter into any agreement with a Governmental Authority with respect and provide Buyer's representatives prompt access to Taxes, settle or compromise any claim or assessment all materials prepared in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01connection therewith.
Appears in 1 contract
Samples: Stock Purchase Agreement (Optical Security Group Inc)
Conduct of Business. From Except as contemplated by this Agreement, during the period from the date of this Agreement until to the earlier Closing Date, without the prior consent of the Buyer (which consent will not be unreasonably withheld or delayed) the Sellers will conduct the Business according to its ordinary course of business consistent with past practice and will use good faith efforts to: (i) preserve its relationships with customers, advertisers, suppliers and others having business dealings with the Business, (ii) maintain all machinery and equipment used in the Business and operation of the Publications in substantially the same state of repair and efficiency normal wear and tear excepted, (iii) perform its obligations under all contracts to be assigned to and assumed by the Buyer, and (iv) maintain in full force and effect through the Closing Date adequate property damage, liability and the termination of this Agreement in accordance other insurance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable respect to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeesAssets. Without limiting the generality of the foregoing, and, except as expressly otherwise contemplated by this Agreement (including or disclosed on Schedule 5.1 hereto, prior to the amendment Closing Date, without the prior consent of the terms of the CCPS substantially in the form set out in Exhibit EBuyer (which consent will not be unreasonably withheld or delayed), the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary Sellers in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall Business will not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change except to the extent required by law or amend the certificate of incorporation, bylaws contractual obligations or other organizational documents of understandings or arrangements existing on the Company or any of its Subsidiaries except date hereof (i) increase in any material manner the case compensation of any of the Companyofficers or other employees of the Business, for any except such change or amendment made increases as are granted in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform in accordance with its obligations under this Agreement or to consummate the Transactions, customary practices; (ii) in the case of the Company’s Subsidiariespay or agree to pay any pension, for retirement allowance or other employee benefit not required or permitted by any existing plan, agreement or arrangement to any such change officer or amendment made in the ordinary course of business employee, whether past or present; or (iii) as expressly contemplated by this Agreementcommit itself to any additional pension, profit-sharing, bonus, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or to any employment agreement or consulting agreement (arising out of prior employment) with or for the benefit of any such person, or, to amend any of such plans or any of such agreements in existence on the date hereof;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise consistent with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issuepast practice, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees)lease, pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, selllicense, transfer, pledgemortgage, encumber or grant any right, option or other commitment for the issuance of shares of their capital stockotherwise dispose of, or splitagree to sell, combine lease, license, transfer, mortgage, encumber or reclassify otherwise dispose of, any shares real or personal property of their capital stock (except the Business, other than, in each the case in relation to the repaymentof any assets other than real property, prepayment or refinancing without replacement thereof with an asset of substantially equivalent kind, condition and value or the enforcement fair market value of any security in respect of any Indebtedness secured by Company Ordinary Stock held by which or the SS Group) or (iv) repurchaseconsideration for which does not exceed $5,000, redeem or otherwise acquireindividually, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests$10,000 in the aggregate for each Publication;
(c) except as otherwise permitted enter into any written note, bond, mortgage, indenture, letter of credit, lease or not restricted by this Section 8.01 enter intosublease, assumecontract, assignagreement, partially obligation, arrangement, understanding or completely amend commitment which would constitute a Material Contract or modify in any material term of respect or terminate (excluding breach any expiration in accordance with its terms) Material Contract or waive, release or assign any Contract of a type required to be listed on Schedule 4.13(a)material rights or claims thereunder;
(d) sellincur, transferassume, lease, pledge guaranty or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) become liable in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation indebtedness relating exclusively to the Company’s Subsidiaries, in Business for money borrowed or subject any of the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries the Business, tangible or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plansintangible, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more Liens (other than $150,000Permitted Liens), except for payment when due of accounts payable incurred in the ordinary course of business consistent with past practice practice;
(iie) adoptsell, enter into assign, transfer, license or materially amend permit to lapse any Company Benefit Plan other than in the ordinary course of business material rights with respect to annual renewals, (iii) grant or provide any material bonusIntellectual Property;
(i) make any material change in circulation practices, severance or termination payments promotional, marketing or benefits to premium practices of any employee or director of the Company or its SubsidiariesPublications, except in connection with the promotioneach case, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) other than in the ordinary course of business consistent with past practice, or (ivii) hire make any employee change in policies for the pricing of circulation or advertising of any of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 Publications except for changes in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);which changes are not material; or
(g) make commit to take any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 action that would result in the aggregate) other than occurrence of any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or foregoing. Notwithstanding any provision contained in this Agreement, any action taken by the Sellers which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited permitted under this Section 8.015.1 shall not constitute a misrepresentation of or breach of warranty or covenant. The Sellers shall have the right to update the Sellers Schedules hereto between the date hereof and the Closing Date to reflect actions taken by the Sellers which are permitted to be taken pursuant to this Section 5.1.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Dow Jones & Co Inc)
Conduct of Business. From the date of this Agreement hereof until the earlier of the Closing Date and or the date of any termination of this Agreement in accordance with its terms (the “Interim Period”), a) the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall will not, and NGM and the Company shall cause its Subsidiaries will not permit any Subsidiary to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company conduct their or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (operations other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, (b) NGM and the Company will not, and NGM and the Company will not permit any Subsidiary to, knowingly take any action that would, or (iv) hire could be reasonably expected to, result in any employee of the Company representations and warranties set forth in this Agreement not being true in all material respects or result in any of its Subsidiariesthe conditions to Closing set forth in this Agreement not being satisfied, and (c) the Purchaser will not knowingly take any action that would, or could be reasonably expected to, result in any other individual who is providing of the representations and warranties set forth in this Agreement not being true in all material respects or will provide services result in any of the conditions to closing set forth in this Agreement not being satisfied. Without limiting the generality of the foregoing, during the period from the date hereof until the Closing Date, except as otherwise required or expressly permitted by this Agreement or the transactions contemplated hereby, the Company will not, and NGM and the Company will not permit any Subsidiary to directly or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) indirectly (i) fail to maintain amend its existencearticles of incorporation or by-laws, (ii) enter into a new material line without the consent of business the Purchaser, authorize for issuance, issue, sell, deliver or agree to commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other than the electricity transmission and distribution and wind and solar manufacturing businesses)securities or equity equivalents, including, without limitation, any stock options or stock appreciation rights, (iii) split, combine or reclassify any shares of its capital stock, or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem, purchase or otherwise acquire (whether by merging or consolidating with agree to redeem, purchase or purchasing any equity interest in or a substantial portion of the assets ofotherwise acquire) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries)its securities, (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization reorganization, (v) except as may be required by generally accepted accounting principles or statutory accounting practices prescribed or permitted by applicable law or insurance regulatory authorities in its state of the Company or any of its Subsidiaries (other than the Merger);
(g) domicile, make any capital expenditures (material change in any financial reporting or commitment to make any capital expenditures) accounting practices either not in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent accordance with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company which would or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, could reasonably be expected to have a material adverse effect on any of them, or make any tax election which would or could reasonably be expected to have a material adverse effect on any of them, (vi) amend or terminate the effect of materially increasing the present Pooling Agreement, or future Tax liability or materially decreasing (vii) take any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete actions described in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.012.17.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fund American Enterprises Holdings Inc)
Conduct of Business. From the date of this Agreement until the earlier of the Closing Date and or the valid termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement (including as contemplated by the Recapitalization and any PIPE Financing) or any other Transaction Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to set forth on Section 6.01 of the Company and its Subsidiaries or Disclosure Letter, as consented to by RMG II in writing by SPAC (which consent shall not be unreasonably conditioned, withheld, delayed withheld or denieddelayed) or as required by applicable Law (including the COVID-19 Measures and Data Protection Requirements), use commercially reasonable best efforts to (i) conduct and operate its business in the ordinary course of business consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including as contemplated by the amendment Recapitalization and any PIPE Financing) or in any other Transaction Agreement, as set forth on Section 6.01 of the terms of the CCPS substantially Company Disclosure Letter, as consented to by SPAC in the form set out in Exhibit Ewriting (such consent not to be unreasonably conditioned, the conversion of any CCPS in accordance with their termswithheld or delayed), or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied)Law, the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate Organizational Documents of incorporationany Group Company;
(b) make, bylaws declare, set aside, establish a record date for or pay any dividend or distribution in cash, stock, property or otherwise, other organizational documents than any dividends or distributions from any wholly-owned Subsidiary of the Company either to the Company or any other wholly-owned Subsidiaries of its Subsidiaries except the Company;
(c) (i) enter into, amend, renew (other than any automatic renewal in accordance with its terms), extend (other than any automatic extension in accordance with its terms), terminate (other than a termination related to a default by the case counterparty or change in applicable Law), provide any consent or waive any material rights under, in each case, any Material Contract required to be listed on Section 4.12(a) of the CompanyCompany Disclosure Letter (or any Contract that if entered into prior to the date hereof would be a Material Contract) (provided that Customer Contracts shall not be governed by this sub-clause (c), for any such change but instead shall be governed by sub-clause (x)) or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) amend, terminate or provide any consent or waiver of any rights under, in each case, the case Trademark License Agreement;
(d) (i) issue, deliver, sell, transfer, pledge or dispose of or place any Lien (other than a Permitted Lien) on, or authorize the issuance, delivery, sale, transfer, pledge, disposition of or placement of any Lien (other than a Permitted Lien) on, any Equity Securities of the Company’s SubsidiariesGroup Companies or (ii) issue or grant any options, for warrants or other rights to purchase or obtain, or authorize the issuance or grant of any such change options, warrants or amendment made other rights to purchase or obtain, any Equity Securities of the Group Companies;
(i) other than in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(bii) except in the ordinary course for (A) dispositions of business in relation to obsolete or worthless equipment or (B) transactions among wholly-owned Subsidiaries of the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer assign, transfer, convey, lease, license, abandon, allow to lapse or expire, subject to or grant any Lien (other than transfers Permitted Liens) on, or otherwise dispose of, any assets, rights or properties (including Intellectual Property Rights) in excess of $3,000,000 (provided that Company Stock held Real Property shall not be governed by former employees of the Company or its Subsidiaries to existing employeesthis sub-clause (e), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock but instead shall be governed by sub-clause (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(af));
(df) sell, assign, transfer, convey, lease, pledge abandon, subject to or grant any Lien (other than Permitted Liens) on, or otherwise encumberdispose of, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not Property in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business5,000,000;
(eg) except as waive, release, settle, compromise or otherwise required by Law resolve any inquiry, investigation, claim, Action, litigation or existing Company Benefit Plans, policies or Contracts other legal proceedings entailing obligations that would impose any restrictions on the business operations of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000Group Companies, except in the ordinary course of business consistent with past practice (ii) adoptor where such waivers, enter into releases, settlements or materially amend any Company Benefit Plan other than compromises involve only the payment of monetary damages in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of an amount less than $1,000,000 in the ordinary course of business consistent with past practiceaggregate;
(fh) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), hire, engage or terminate (other than for “cause”) any employee, officer, or individual independent contractor with an annual base compensation in excess of $200,000;
(vii) (A) except as otherwise required by the terms of any existing Company Benefit Plan or (B) pursuant to the terms of this Agreement, (i) other than in the ordinary course of business, pay or promise to pay, fund any new, enter into or make any grant of any severance, change in control, transaction, retention or termination payment to any Company Service Provider, (ii) other than promises to grant options pursuant to the Incentive Equity Plan in accordance with Section 6.01 of the Company Disclosure Letter, grant or promise to grant any Equity Securities of the Company, (iii) take or promise to take any action to accelerate any payments or benefits, or the funding or vesting of any payments or benefits, payable or to become payable to any Company Service Provider, (iv) other than in the ordinary course of business, take or promise to take any action to increase any compensation or benefits of any Company Service Provider with an annual base compensation in excess of $200,000, other than base salary increases or in connection with promotions that do not exceed $25,000 per Company Service Provider, (v) other than in the ordinary course of business, establish, adopt, enter into, materially amend or terminate any Company Benefit Plan or any Contract that would be a Company Benefit Plan if in effect as of the date of this Agreement (other than changes in connection with annual open enrollment periods and similar broad-based, immaterial changes or as otherwise permitted pursuant to this Agreement, including this Section 6.01(i));
(j) unless required pursuant to a CBA, negotiate, modify, extend or enter into or promise to negotiate, modify, extend or enter into any CBA or recognize or certify any labor union, labor organization, works council or group of employees as the bargaining representative for any Company Service Provider;
(k) waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, non-disparagement or other restrictive covenant obligation of any Company Service Provider;
(l) make any loans or advance any money or other property to any Person, except for (i) advances in the ordinary course of business to any Company Service Provider, (ii) prepayments and deposits paid to suppliers of any Group Company in the ordinary course of business, (iii) trade credit extended to Customers of any Group Company in the ordinary course of business and (iv) advances or other payments among the Company and its wholly-owned Subsidiaries;
(m) redeem, purchase, repurchase or otherwise acquire, or offer to redeem, purchase, repurchase or acquire, any Equity Securities of any Group Company other than (i) transactions among the Company and its wholly-owned Subsidiaries or among the wholly-owned Subsidiaries of the Company, (ii) in connection with the termination of a Company Service Provider, (iii) under the terms of a Company Benefit Plan or (iv) acquisitions of Pre-Split Shares tendered by holders of Company equity awards in order to satisfy obligations to pay Tax withholding obligations with respect thereto or the acquisition of Company equity awards in connection with the forfeiture of such awards;
(n) adjust, split, combine, consolidate, subdivide, recapitalize, reclassify, convert or otherwise effect any change in respect of any Equity Securities of the Group Companies;
(o) materially amend or change any Group Company’s accounting policies or procedures, other than reasonable and usual amendments in the ordinary course of business or as required by a change in GAAP, IFRS or the Indian Accounting Standards, as the case may be;
(p) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger)Group Companies;
(gq) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company change or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain revoke any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its SubsidiariesTax election, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(jii) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice, (iii) change or revoke any material accounting method with respect to a Tax, (iv) amend any material Tax Return, (v) settle or compromise any material Tax claim, Action or Tax liability, (vi) enter into a Tax sharing agreement, Tax indemnification agreement, Tax allocation agreement or similar Contract (other than commercial Contracts, the primary subject of which is not Taxes) with any Person other than a Group Company, (vii) enter into any closing agreement with respect to a material Tax with any Governmental Authority, (viii) surrender any right to claim a refund of a material amount of Taxes or (ix) change its jurisdiction of tax residency;
(r) incur, create, issue, assume or guarantee any Indebtedness (or warrants or other rights to acquire debt securities), other than (i) between the Company and any of its wholly-owned Subsidiaries or between any of such wholly-owned Subsidiaries, (ii) in connection with borrowings, extensions of credit and other financial accommodations under the Group Companies’ existing credit facilities, notes and other existing Indebtedness as of the date of this Agreement, or (iii) Indebtedness for borrowed money incurred in the ordinary course of business and in an amount, individually or in the aggregate, not to exceed $3,000,000;
(s) other than in the ordinary course of business, enter into (i) any agreement that materially restricts the ability of (A) the Group Companies to engage or compete in any line of business or (B) any Group Company to enter into a new line of business or (ii) any new line of business;
(t) except (i) as set forth on Section 6.01(t) of the Company Disclosure Letter, or (ii) as set forth in the individual property budgets for each Company Real Property made available to SPAC prior to the date hereof, make or commit to make any capital expenditures in excess of $1,000,000 individually or $5,000,000 in the aggregate; provided, however, that the foregoing shall in no way prohibit the Company from making any necessary capital expenditures in connection with an emergency or casualty at any Company Real Property;
(u) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions;
(v) make any application to any Governmental Authority for any material change in the zoning, approved site plan, special use permit, planned development approval or other land use entitlement, affecting any Company Real Property or any Additional Real Property, in each case other than in the ordinary course of business;
(i) directly or indirectly acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by purchasing all of or a substantial equity interest in, or by any other manner, any business or any corporation, company, partnership, limited liability company, joint venture, association or other entity or Person or division thereof, or (ii) enter into any agreement to acquire any real property, in each case, except for (A) purchases of inventory and other assets in the ordinary course of business, (B) acquisitions or investments that do not exceed (1) $3,000,000 in a single transaction or series of related transactions or (2) $7,500,000 in the aggregate or (C) investments in any wholly-owned Subsidiaries of the Company;
(x) enter into any Customer Contract (i) except in the ordinary course of business and (ii) so long as such Customer Contract does not (A) provide any material concession or credit to a Person or impose material obligations upon any Group Company without receiving any commercially reasonable benefit from the other party thereunder, (B) require any Group Company to provide a level of power to any Person such Group Company could not reasonably provide or (C) prohibit any Group Company from assigning or subcontracting all or any portion of its rights and obligations under such Customer Contract to an entity controlled by or under common control with the Company;
(y) terminate any Customer Contract (i) that is with a Material Customer or (ii) with a Customer that is not a Material Customer, except in the case of this clause (ii), (A) in the ordinary course of business, (B) as a result of the non-payment of rent and other monetary obligations by such Customer under such Customer Contract or (C) where the aggregate revenues with respect to such Customer Contract during any consecutive 12 (twelve)-month period prior to the date of termination did not exceed $500,000;
(z) enter into any lease or agreement for lease of any real property in respect of which the annual rent payable under such lease by the Group Companies to the applicable landlord would exceed $500,000;
(aa) enter into any Contract with a Company Related Party; or
(qbb) authorize or commit or agree enter into any Contract to do any action prohibited under this Section 8.016.01. Notwithstanding anything to the contrary contained herein (including this Section 6.01), (x) nothing herein shall prevent any Group Company from taking (or not taking) any action in order to comply with any applicable COVID-19 Measures or any action that is taken in good faith in response to COVID-19, and no such action (or failure to act) shall serve as a basis for SPAC to terminate this Agreement or assert that any of the conditions to the Closing contained herein have not been satisfied and (y) nothing in this Section 6.01 is intended to give SPAC or any of its Affiliates, directly or indirectly, the right to control or direct the business or operations of the Group Companies prior to the Closing, and prior to the Closing, the Group Companies shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their respective businesses and operations.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cartica Acquisition Corp)
Conduct of Business. From the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except Except as expressly otherwise contemplated by this Agreement------------------- Agreement or as set forth on Schedule 5.1, Seller agrees, with regard to the ------------ Business and the Assets, as required by applicable Law or pursuant to any COVID-19 Measures applicable to applicable, from the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioneddate hereof until the Closing, withheld, delayed or denied), use commercially reasonable efforts to to: (i) conduct maintain the Assets in good operating condition and operate its business in the ordinary course repair consistent with past practiceprior practices, including to preserve the goodwill and present business relationships (contractual except for fire, flood or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees acts of God and (ii) comply in all material respects with all Laws applicable to it conduct the Business and its Subsidiaries and their respective businesses, assets and employees. Without limiting utilize the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except Assets in the ordinary course of business consistent with past practice (ii) adoptpractices. Except as se t forth on Schedule 5.1, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business Seller ------------ agrees, with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (regard to the extent permitted by clause (iv) of this paragraph) in Business and the ordinary course of business consistent with past practiceAssets, or (iv) hire any employee of as applicable, from the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to date hereof until the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) Closing not to: (i) fail to maintain its existence, (ii) enter into a new any material line of business (other than contract or commitment to which Buyer will be bound or liable after the electricity transmission and distribution and wind and solar manufacturing businesses)Closing, (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than except in the ordinary course of business in relation to the Company’s Subsidiaries), a manner consistent with past business practices; (ivii) make any acquisition of any assets, business, equity interests or other properties or incur any liability material Liability, whether fixed or obligation in excess of $1,000,000 individually contingent to which Buyer will be bound or $2,500,000 in liable after the aggregate (other than Closing, except in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business manner consistent with past practice business practices; (iii) discharge or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain satisfy any material authorization from a Governmental Authority Lien or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change pay any material Tax election Liability, whether fixed or adopt contingent to which Buyer will be bound or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) liable after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business and in a manner consistent with past business practices or that otherwise do not exceed $10,000,000 in accordance with the aggregate;
terms thereof; (miv) mortgage, pledge or subject to Lien any of the Assets; (iv) incur, assume, guarantee or otherwise become subject to or surety on any indebtedness or obligation relating to any lending or borrowing or any other material Liability unique to or primarily with respect to the Business or the Assets to which Buyer will be bound or liable for (whether directlyafter the Closing, contingently or otherwise) any material Indebtedness, other than Indebtedness except liabilities and commitments incurred in the ordinary course of business in a manner consistent with past business practices; (vi) waive or release any rights of material value to unaffiliated third parties with respect to the Business; (vii) transfer, sell, grant, encumber, assign or terminate any material rights (other than implied rights of use in customers from the purchase of goods in the ordinary course of business) under any material concessions, leases, licenses, agreements, patents, patent licenses, inventions, trademarks, trade names, service marks, trade dress or copyrights, or registrations or licenses thereof or applications therefor, or with respect to any know-how, trade secrets, or other proprietary or trade rights which for are an Asset; (viii) modify, change, release or waive in any material respect or terminate any contract listed on Part I of Schedule 3.15; (ix) make any borrowing of money unique to the avoidance Assets ------------- or the Business to which Buyer will be bound or liable after the Closing; (x) except as set forth in Article 3.5, sell, discount or otherwise dispose of doubtany accounts receivable, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate business in a manner consistent with past business practices; (xi) change its accounting principles or modify policies; (xii) cause any terms of Non-U.S. Subsidiary (other than Xxxxxx-Xxxxxx (France)) to distribute by dividend or to otherwise transfer to Seller or any agreement with respect affiliate thereof any cash or cash equivalents borrowed under any credit facility, of any kind, in contemplation of such distribution or transfer; and (xiii) cause any Non-U.S. Subsidiary (other than Xxxxxx-Xxxxxx (France)) to borrow cash or cash equivalents under any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiariescredit facility, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business in a manner consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01business practices.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wesley Jessen Holding Inc)
Conduct of Business. From During the period from the date of this Agreement until to the earlier Closing Date, except (A) as otherwise expressly contemplated or permitted by this Agreement, (B) as set forth on Section 5.1 of the Closing Date and Stonegate Disclosure Schedule, (C) as required by any Governmental Authority or Applicable Law, or (D) with the termination written consent of this Agreement in accordance with its terms (the “Interim Period”)Parent, the Company Stonegate shall, and shall cause its Subsidiaries to, except as expressly contemplated by (x) maintain its existence under Applicable Law, (y) conduct its business and operations in the ordinary and usual course of business and in a manner consistent with prior practice and in accordance with Applicable Law, and (z) use commercially reasonable efforts to keep available the services of its current officers and employees and preserve the rights, franchises, goodwill and relations of its customers, clients and others with whom business relationships exist. Without limiting the foregoing, Stonegate covenants and agrees that between the date of this AgreementAgreement and the Closing Date, as required by applicable Law or pursuant to any COVID-19 Measures applicable to without the Company and its Subsidiaries or as consented to by RMG II in writing prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld, delayed withheld or denied), use commercially reasonable efforts to (idelayed) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated or permitted by this Agreement (including the amendment Agreement, or required by Applicable Law, or as set forth in Section 5.1 of the terms of the CCPS substantially in the form set out in Exhibit EStonegate Disclosure Schedule, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company it shall not, and the Company shall cause its Subsidiaries not to, during the Interim Perioddirectly or indirectly:
(ai) change or amend the certificate Charter Documents of incorporation, bylaws Stonegate or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise add, amend or modify in any respect the duties or obligations of indemnification by Stonegate or such Subsidiary with respect to any capital stock of its respective directors, officers, employees, agents or other equity interests in any of the Company or its Subsidiaries, Persons;
(ii) effect any recapitalizationadjust, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their its capital stock or other equity interests;
interests or declare, set aside, make or pay any dividend or other distribution (c) except as otherwise permitted whether in cash, shares, equity interests or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company property or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (iicombination thereof) in respect of its capital stock or equity interests (other than to a wholly-owned Subsidiary of Stonegate), or redeem, repurchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire any power generating assets, with a capacity not in excess of 500 megawatts, its securities (iiiexcept (A) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, regular quarterly cash dividends by Stonegate on Stonegate Common Stock in the ordinary course of business and consistent with past practice practice; provided however, beginning on the eight month anniversary of the date of this Agreement Stonegate shall be permitted to pay certain dividends as set forth on Section 5.1(ii) of the Stonegate Disclosure Schedule, (B) dividends paid by any of the Subsidiaries of Stonegate to Stonegate or any of its wholly owned Subsidiaries, respectively, or (vC) the creation acceptance of shares of Stonegate Common Stock as payment for the exercise price of Stonegate Stock Options or for withholding taxes incurred in connection with the exercise of Stonegate Stock Options that are outstanding on the date hereof and in accordance with past practice and the terms of the applicable award agreements);
(iii) except as required by Stonegate Material Contracts, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries any other individual, corporation or the Company other entity other than a wholly-owned Subsidiary of Stonegate;
(iv) sell, lease, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to secure Indebtedness incurred by the Company any Person (except for sales of properties or its Subsidiaries assets in the ordinary course of businessbusiness consistent with past practice) or merge or consolidate with any Person;
(ev) except as otherwise required acquire direct or indirect control over any business or Person, whether by Law stock purchase, merger, consolidation or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiariesotherwise; except, in effect on the date connection with a foreclosure of this Agreement, (i) grant any material increase collateral or conveyance of such collateral in compensation, benefits or severance to any key employee or manager lieu of the Company or its Subsidiaries foreclosure taken in connection with annual base compensation collection of more than $150,000, except a Loan in the ordinary course of business consistent with past practice and with respect to Loans made to third parties who are not Affiliates of Stonegate;
(iivi) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect business, incur any indebtedness (excluding bank deposits) for borrowed money (other than indebtedness of Stonegate or any of its wholly-owned Subsidiaries to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company Stonegate or any of its Subsidiaries), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity; provided that Stonegate may continue to purchase federal funds and borrow money from the Federal Home Loan Bank System, the Federal Reserve Bank of Atlanta or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 Governmental Authority in the ordinary course of business consistent with past practice;
(fvii) make any change to its accounting methods, principles or practices, except as required by GAAP or Applicable Law;
(iviii) fail to maintain its existenceexcept for any payments disclosed in Section 5.8(a) of the Stonegate Disclosure Schedule, (iiA) enter into a new material line increase the compensation, severance, benefits, change of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business control payments or any corporationother amounts payable, partnershipor pay or award, associationor commit to pay or award, joint venture any bonuses or incentive compensation, to its present or former officers, employees or directors, other business organization than, in each case, nonmaterial increases in compensation or division thereof (other than benefits for non-executive employees made in the ordinary course of business in relation to the Company’s Subsidiaries)consistent with past practice, (ivB) make establish, adopt, enter into, amend or terminate any acquisition of any assetscollective bargaining agreement or Stonegate Employee Benefit Plan, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, amendments in the ordinary course of business consistent with past practice or between that do not materially increase the Company and its Subsidiaries;
(i) amend in a manner materially detrimental cost to the Company or any of its SubsidiariesStonegate, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of businessmaintaining such Stonegate Employee Benefit Plan, or enter into (C) take any agreement that restricts action to accelerate any payment or benefit, or the ability funding of the Company any payment or any of its Subsidiaries benefit, payable or to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect payable to any outstanding material Indebtedness;
(nsuch individual; provided, however, that Stonegate may make payments that would otherwise be prohibited by subparagraph 5.1(viii)(A) make any change in financial accounting methodsduring fiscal 2018 if the Effective Time has not occurred by December 31, principles or practices materially affecting the reported consolidated assets2017, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) such payments are made in the ordinary course of business consistent with past practice;
(A) grant any stock appreciation rights, options, restricted stock, restricted stock units, awards based on the value of Stonegate’s capital stock or other equity-based compensation or grant to any Person any right to acquire any shares of its capital stock, or amend or modify (including by way of interpretation) any of the foregoing; (B) issue or commit to issue any additional shares of capital stock of Stonegate, other than the issuance of shares of Stonegate Common Stock upon the exercise of any Stonegate Stock Options that are outstanding on the date hereof and in accordance with the terms of the applicable award agreement; (C) issue, sell, lease, transfer, mortgage, encumber or otherwise dispose of any capital stock in any of Stonegate’s Subsidiaries; or (D) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock; provided, however, that Stonegate may make grants to directors, officers and employees that would otherwise be prohibited by subparagraph 5.1(ix)(A) during fiscal 2018 if the Effective Time has not occurred by December 31, 2017, and such grants are made in the ordinary course of business consistent with past practice;
(A) make or change any Tax election, (B) settle or compromise any Tax liability, claim, audit or assessment, (C) fail to file any Tax Return when due (taking extensions into account) or fail to remit any Taxes due, whether or not shown on the Tax Return, (D) enter into any closing agreement, (E) agree to extend any statute of limitations relating to Taxes; (F) file any amended Tax Return or (G) surrender, offset or reduce any right to claim a Tax refund;
(xi) fail to use commercially reasonable efforts to maintain existing insurance policies or comparable replacement policies to the extent available for a reasonable cost;
(xii) enter into any new line of business or change in any material respect its lending, investment, underwriting, risk and asset liability management, interest rate or fee pricing with respect to depository accounts, hedging and other material banking and operating policies or practices;
(xiii) except set forth in Section 5.1(xiii) of the Stonegate Disclosure Schedule, file any application to establish, or to relocate or terminate the operations of, any banking office;
(xiv) make, or commit to make, any capital expenditures in excess of $1 million in the aggregate, other than as disclosed in Stonegate’s capital expenditure budget set forth in Section 5.1(xiv) of the Stonegate Disclosure Schedule;
(xv) make, amend or renew any extension of credit, individually or in the aggregate with other extensions of credit to the same relationship, outside of the ordinary course of business or inconsistent with past practice;
(xvi) make, renew, or amend any extension of credit to a borrower who has an existing credit that falls into the past due 90 days or more, nonaccrual or classified categories, other than “Watch List”, described in Section 3.16(b) (i) - (iii) or would be subject to the Federal Reserve Board’s Regulation O, other than as permitted by Section 5.1(xxv);
(xvii) enter into, renew or amend any interest rate swaps, caps, floors and option agreements and other interest rate risk management arrangements, whether entered into for its account or for the account of a customer of it, except in the ordinary course of business and consistent with past practice;
(xviii) (A) grant, extend, amend (except as required in the diligent prosecution of the Intellectual Property owned (beneficially, and of record where applicable) by or developed for Stonegate, waive, or modify any material rights in or to, sell, assign, lease, transfer, license, let lapse, abandon, cancel, or otherwise dispose of, or extend or exercise any option to sell, assign, lease, transfer, license, or otherwise dispose of, any Intellectual Property, or (B) fail to exercise a right of renewal or extension under any material agreement under which Stonegate is licensed or otherwise permitted by a third party to use any Intellectual Property (other than “shrink wrap” or “click through” licenses), unless Stonegate obtains a substantially similar license or right to use such Intellectual Property on terms as favorable as the terms under the existing agreement;
(xix) amend or extend any leases for real property other than as provided in Section 5.1(xix) of the Stonegate Disclosure Schedule;
(xx) except for transactions in the ordinary course of business, terminate, amend, or waive any material provision of, any Stonegate Material Contract, or make any change in any instrument or agreement governing the terms of any of its securities, or material lease or contract, other than normal renewals of contracts and leases without material adverse changes of terms with respect to Stonegate, or enter into any contract that would constitute a Stonegate Material Contract if it were in effect on the date of this Agreement;
(xxi) (A) settle any claim, action or proceeding other than claims, actions or proceedings in the ordinary course of business consistent with past practice involving solely money damages not in excess of $1 million in the aggregate, or waive, compromise, assign, cancel or release any material rights or claims; or (B) agree or consent to the issuance of any settlement agreement, injunction, decree, order or judgment restricting or otherwise affecting its business or operations;
(xxii) materially restructure or materially change its investment securities portfolio, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(xxiii) change in any material respect its credit policies and collateral eligibility requirements and standards;
(xxiv) participate in any program sponsored or administered by any Governmental Authority, which program is not part of the usual and customary banking business of Stonegate;
(xxv) engage in (or modify in a manner adverse to Stonegate) any transactions with any director or officer of Stonegate or its Affiliates, other than deposit relationships and other transactions in the ordinary course of business consistent with past practice, and extensions of credit which are on substantially the same terms, including interest rates and collateral, as those prevailing at the time for comparable transactions with Persons unaffiliated with Stonegate and did not involve more than the normal risk of collectability or present other unfavorable features;
(xxvi) adopt a plan of complete or partial liquidation or dissolution;
(xxvii) take any action or knowingly fail to take any action, which action or failure to act would reasonably be expected to prevent or impede the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(xxviii) agree to take, make any commitments to take, or adopt any resolutions of the board of directors or shareholders in support of, any of the actions prohibited by this Section 5.1;
(xxix) take or fail to take any action that would reasonably be expected to cause the representations and warranties made in ARTICLE III to be inaccurate in any material respect at the time of the Closing or preclude Stonegate from making such representations and warranties at the time of the Closing;
(xxx) take any action that is intended to or would reasonably be likely to result in any of the conditions set forth in ARTICLE VI not being satisfied or prevent or materially delay the consummation of the transactions contemplated hereby; or
(qxxxi) authorize or commit or agree to do take any action prohibited that is intended to or would reasonably be expected to adversely affect or materially delay the ability of Stonegate or its Subsidiaries to obtain any necessary approvals of any Governmental Authority required for the transactions contemplated hereby or to perform its covenants and agreements under this Section 8.01Agreement or to consummate the transactions contemplated hereby.
Appears in 1 contract
Conduct of Business. From the date of Except as otherwise contemplated in this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II Buyer in writing (writing, which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denied)delayed, use commercially reasonable efforts to (i) conduct and from the date hereof through the Closing, Seller shall operate its business the Business in the ordinary course consistent of business and substantially in accordance with past practice, including to preserve custom and practice and will not take any action inconsistent with this Agreement or with the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeesconsummation of the Closing. Without limiting the generality of the foregoing, Seller shall not, except as expressly specifically contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II Buyer in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Periodwriting:
(a) change or amend the certificate Seller's Articles of incorporation, bylaws Incorporation or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementBylaws;
(b) except withdraw any portion of the principal of the Endowment Care Fund, including, without limitation, net realized capital gains; provided, however, that Seller may withdraw, from time to time, and apply interest, dividends and other earnings on the Endowment Care Fund as provided by applicable Regulations and, provided further, Seller may affect changes in the ordinary course investment strategy or policies of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise Endowment Care Fund so long as it advises Buyer with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestssuch changes;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assumeextend, assignmodify, partially terminate or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) renew any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real PropertyLease, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (vd) sell, assign, transfer, licenseconvey, assignlease, fail to maintain mortgage, pledge or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company Assets, or any interests therein, except for sales, including sales of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s SubsidiariesInventory, in the ordinary course of business consistent with its past practice or between the Company custom and its Subsidiariespractice;
(ie) amend in a manner materially detrimental to incur any Liability for long-term interest bearing indebtedness, guarantee the Company or any obligations of its Subsidiariesothers, terminateindemnify others or, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, except in the ordinary course of business, incur any other Liability;
(f) make any change in the key officers of Seller or as required hire any employees in the Business;
(g) acquire by applicable Lawmerger or consolidation with, make or change merge or consolidate with, or purchase substantially all of the assets of, or otherwise acquire any material Tax election assets or adopt business of any corporation, partnership, association or change other business organization or division thereof;
(h) fail to conduct its cash management customs and practices including the collection of accounts receivable, inventory control and payment of accounts payable other than in the usual and ordinary course of business in accordance with past custom and practice;
(i) make any material Tax accounting method, file any material amendment loans or advances to any income Tax Return partnership, firm or other material Tax Returncorporation, enter into any agreement with a Governmental Authority with respect to Taxesor, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or except for expenses incurred in the aggregateordinary course of business, reasonably any individual;
(j) intentionally do any other act which would cause any representation or warranty of Seller in this Agreement to be expected to have the effect of materially increasing the present or future Tax liability become incorrect or materially decreasing untrue in any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closingrespect;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of businessagreement, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directlyobligated, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01hereunder; or
(l) grant, create, or suffer an Encumbrance on any of the Assets other than Permitted Encumbrances.
Appears in 1 contract
Conduct of Business. From During the period from the date of this Agreement and continuing until the earlier of the Closing Date and the termination of this Agreement or the Effective Time, each Target agrees (except to the extent expressly contemplated by this Agreement or as consented to in accordance with its terms (the “Interim Period”writing by Acquirer), and Acquirer agrees (except to the Company shallextent expressly contemplated by this Agreement or as consented to in writing by Targets): (a) to carry on its business in the usual regular and ordinary course in substantially the same manner as heretofore conducted; (b) to pay its debts and Taxes when due (subject to good faith disputes over such debts or Taxes); (c) to pay or perform other material obligations when due; and (d) to use all reasonable efforts to preserve intact its present business organizations, keep available the services of its present officers and key employees and preserve its relationships with material customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses shall cause be unimpaired at the Effective Time. Each party agrees to promptly notify the other parties hereto of (a) any material event or occurrence not in the ordinary course of such party's business, and of any event which could reasonably be expected to have a Material Adverse Effect on such party; and (b) any material change in its Subsidiaries tocapitalization as set forth in this Agreement (including the schedules hereto). Without limiting the foregoing, except as expressly contemplated by this Agreement, as required by applicable Law the Target Disclosure Schedule or pursuant to the Acquirer Disclosure Schedule, neither Target shall cause or permit any COVID-19 Measures applicable to of the Company and its Subsidiaries or as consented to by RMG II in writing following without the prior written consent of Acquirer (which consent shall consent, with respect to clause (k) below, will not be unreasonably conditioned, withheld, delayed or deniedwithheld by Acquirer), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent Acquirer shall not be unreasonably conditioned, withheld, delayed cause or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in permit any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees following without the prior written consent of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.Targets:
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Goamerica Inc)
Conduct of Business. From During the period from the date of this Agreement until to the earlier Closing Date, except (i) as set forth in Section 5.1 of the Closing Date and the termination of this Agreement in accordance with its terms Seller’s Disclosure Schedule, (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except ii) as expressly contemplated by this Agreement, Agreement or (iii) as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II Buyer shall otherwise consent in writing (which such consent shall not to be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), use commercially reasonable efforts APD agrees that it will, and will cause each of the Transferred PMD Companies and the PMD Asset Sellers (in respect of the PMD Business) to (ix) conduct and operate its business the PMD Business in all material respects in the ordinary course consistent with past practice, including and (y) use commercially reasonable efforts to preserve intact the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply PMD Business in all material respects with all Laws applicable respects. During the period from the date of this Agreement to it and its Subsidiaries and their respective businessesthe Closing Date, assets and employees. Without limiting the generality except (A) as set forth in Section 5.1 of the foregoingSeller’s Disclosure Schedule, except (B) as expressly Buyer shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), (C) as contemplated by this Agreement and (including the amendment of D) as required by Law or the terms of any existing Contract to the CCPS substantially extent disclosed in the form set out Seller’s Disclosure Schedules, APD covenants and agrees that it shall, and shall cause the Transferred PMD Companies and the PMD Asset Sellers, in Exhibit Eeach case solely with respect to the PMD Business, the conversion of not to take any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Periodfollowing actions:
(a) change or amend the certificate of incorporationcharter, bylaws by-laws or other similar organizational documents of any of the Transferred PMD Companies or create any new Subsidiary of any Transferred PMD Company or consent to or authorize the creation of any new Subsidiary of its Subsidiaries except (i) a Transferred PMD Company or acquire any equity interest in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreementa Person;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company Transferred PMD Companies, issue or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries agree to existing employees), pledge, encumber, dispose of or deliver issue any additional shares of their capital stock (other than shares to be transferred to Buyer at the Closing), or issue or agree to issue any other equity interests or securities convertible into or exchangeable for or exercisable for, or options with respect to, or warrants to purchase or rights to subscribe for, shares of their capital stockstock of any of the Transferred PMD Companies, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain transfer or otherwise dispose of or encumber any shares of capital stock of any of the material assets or material Intellectual Property pertaining Transferred PMD Companies;
(c) with respect to the business any of the Company Transferred PMD Companies, declare, set aside, or pay any dividend or other distribution payable in stock or property with respect to its capital stock or other equity interests therein;
(d) with respect to any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business)Transferred PMD Companies, or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization under applicable Law;
(e) permit any of the Company Transferred PMD Companies or any PMD Asset Seller in respect of its Subsidiaries the PMD Business to issue any note, bond, or other debt security, or create, incur, assume or guarantee any Indebtedness, in each case, other than (i) Indebtedness of a PMD Asset Seller that will not be an Assumed Liability or create an Encumbrance on any PMD Asset (other than any Permitted Encumbrance), (ii) intercompany loans or advances that will be settled prior to or upon Closing and (iii) other Indebtedness not to exceed $5,000,000 in the Merger)aggregate outstanding at any one time;
(f) except in the ordinary course of the business consistent with past practice, sell or otherwise dispose of, or incur, create or assume any Encumbrance (other than Permitted Encumbrances) with respect to, any material assets of the PMD Business;
(g) make change any capital expenditures financial accounting method used by it relating to the PMD Business, unless (i) required by GAAP or commitment to make Law or (ii) recommended by independent auditors or consistent with changes made by APD in respect of the Excluded Businesses (it being understood that any capital expenditureschanges under this clause (g) in excess shall not impact the calculation of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereofClosing Adjustment Amounts);
(h) with respect to any of the Transferred PMD Companies, make or revoke any loansmaterial Tax election, advances adopt or capital contributions tochange any material Tax accounting method, settle or compromise any material Tax Audit, surrender any right to a material Tax refund, file a material amended Tax Return, or investments inconsent to an extension or waiver of any statute of limitations with respect to Taxes or a Tax assessment or deficiency, in each case other than as a result of any other Personsuch Transferred PMD Company being a member of any affiliated, consolidated, combined or unitary Tax group;
(i) modify any employment, severance, termination or change in control agreement or Business Plan for any Business Employee, other than, in each case, in the ordinary course of business and consistent with past practice or as may be required by a Business Plan or applicable Laws;
(j) transfer any active Business Employee into a role that would cause such individual to no longer be a Current Business Employee, or transfer any individual into a role that would cause such individual to become a Business Employee except, in each case, for transfers of employees with an annual base salary less than $85,000 in the ordinary course of business and consistent with past practice;
(k) acquire or agree to acquire, by merger, consolidation, stock or asset purchase or otherwise, any material business or corporation, partnership, limited liability company, association or other business organization or division thereof or assets, other than (i) purchases of assets in connection with the operation of the PMD Business and (ii) other assets in connection with the obligations of the Transferred PMD Companies or the PMD Asset Sellers pursuant to a Contract included in the PMD Assets, in each case in the ordinary course of business and consistent with past practice;
(l) enter into or terminate any Contract in relation to the Company’s SubsidiariesPMD Business for the sale (other than in the ordinary course of business), purchase or lease (as lessee) of material real property or exercise any option to extend (other than extensions in the ordinary course of business) any leases of the Leased Real Property;
(m) enter into any Contract that (i) limits or purports to limit the ability of any PMD Asset Seller (solely in respect of the PMD Business) or any Transferred PMD Company after the Closing to compete in any business or with any Person or in any geographic area or (ii) grants “most favored nation” or similar best available pricing terms, other than in the ordinary course of business and consistent with past practice;
(n) amend or modify in any material respect, voluntarily terminate or cancel any Material Contract or enter into or voluntarily extend (other than extensions in the ordinary course of business) any Contract that if in effect on the date hereof would be a Material Contract, in each case other than in the ordinary course of business consistent with past practice or between the Company and its Subsidiariespractice;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (iio) except in the ordinary course of business, amendcancel, restate compromise or modify settle any terms of material claim, or intentionally waive or release any agreement material right with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles Material Contract or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereofPMD Business;
(p) fail in a enter into any material manner to manage its working capital (including the timing of collection of accounts receivable and consent decree or settlement agreement with any Governmental Authority, against or affecting any of the payment Transferred PMD Companies or the PMD Business unless such settlement or compromise does not impose any material equitable relief on a Transferred PMD Company or the PMD Business (it being agreed and understood that this clause (p) shall not apply with respect to Tax matters, which shall be governed by clause (h));
(q) commence or initiate any Action against any customer, supplier or vendor of accounts payable and the management PMD Business that would reasonably be expected to be material to the PMD Business, without good faith consultation with Buyer prior to such commencement;
(r) fail to spend, materially reduce, or delay to spend the amounts budgeted for capital expenditures as set forth in Schedule K;
(s) terminate, suspend, amend or modify in any material respect, any Permit that is material to the operation of inventorythe PMD Business, except (i) as required by applicable Law or a Governmental Authority or (ii) in the ordinary course of business consistent with past practice;
(t) make or agree to make any loans, or advances or investments in any Person that is not a Transferred PMD Company or Affiliate thereof, or agree to guarantee any obligations of any Person that is not a Transferred PMD Company or Affiliate thereof, other than extensions of credit to customers in the ordinary course of business consistent with past practices;
(u) enter into or modify any material intercompany arrangement, other than in the ordinary course of business and other than any intercompany arrangement that is terminated and settled prior to or at Closing in accordance with Section 5.5;
(v) with respect to any material registrations and applications for Intellectual Property included in the PMD IP, forego any deadlines, payments, annuities, maintenance fees, office actions, or other official deadlines; or
(qw) authorize or commit or agree to do take any action prohibited under of the foregoing actions. Nothing contained in this Section 8.01Agreement shall be construed to give to Buyer or its Subsidiaries directly or indirectly, rights to control or direct the PMD Business’ operations or the PMD Assets prior to the Closing. Notwithstanding any provision herein to the contrary, prior to the Closing, without the consent of Buyer, each of the Sellers and their Subsidiaries and the Transferred PMD Companies will be permitted to (i) declare and pay dividends and distributions of, or otherwise transfer or advance, to APD or any Subsidiary thereof, (x) any Excluded Assets (including in connection with any “cash sweep” or cash management practices) and (y) any APD Books and Records and (ii) make any payments under, or repay (in part or in full), any Indebtedness.
Appears in 1 contract
Samples: Purchase Agreement (Air Products & Chemicals Inc /De/)
Conduct of Business. From During the period from the date of this Agreement and continuing until the earlier of the Closing Date and the termination of this Agreement or the Closing Date, each Seller agrees, and NAI shall cause each other Seller to, with respect to the Business (except to the extent that Purchaser shall otherwise consent in accordance with its terms (the “Interim Period”writing, which consent shall not be unreasonably withheld), carry on the Company shallBusiness in the Ordinary Course of Business, and continue to pay its debts and taxes when due, to pay or perform other obligations when due, and to use reasonable efforts to keep employed each Seller Employee and to preserve intact the Acquired Assets and all material relationships with third parties that have existing agreements with Sellers with respect to the Business. NAI shall cause its Subsidiaries to, except promptly notify Purchaser of any material event or occurrence not in the Ordinary Course of Business. Except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to Sellers shall not, without the Company and its Subsidiaries or as consented to by RMG II in writing (prior written consent of Purchaser, which consent shall not be unreasonably conditioned, withheld, delayed or deniedwithheld in the case of clauses (a), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practicec)(iii), including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (iie) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Periodbelow:
(a) change enter into any commitment or amend transaction or Contract related primarily to the certificate of incorporation, bylaws or other organizational documents operation of the Company or any of its Subsidiaries except Business that is not (i) in the case Ordinary Course of the Company, for any such change Business or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case that will be a Shared Contract or that will be a Transferred Contract that will require consent of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;a third Person to assign to Purchaser at Closing; STARBURST ASSET PURCHASE AGREEMENT
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) maketransfer to any third Person ownership of, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect grant licenses to, or otherwise disclose or release to any capital stock third Person, any Transferred IP, other than non-exclusive licenses of Sniffer Products pursuant to Customer Contracts entered into in the Ordinary Course of Business that are not Shared Contracts, or other equity interests in any of the Company or its Subsidiaries, (ii) effect enter into any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestsInbound IP Contract;
(c) except as otherwise permitted enter into any Business Contracts (i) pursuant to which a third Person is granted exclusive marketing or exclusive distribution rights with respect to any Sniffer Products or any other marketing or distribution rights that cannot restricted be terminated by this Section 8.01 enter intoPurchaser without penalty within 30 days after the Closing Date, assume(ii) which by its terms limits the ability of Purchaser to compete with any Person or in any geographic region or business after Closing, assign, partially or completely amend (iii) which would require the payment of $250,000 or modify more by any material term Seller or Purchaser other than the purchase of or terminate (excluding any expiration Sniffer Product hardware and software in accordance with its terms) any Contract the Ordinary Course of a type required to be listed on Schedule 4.13(a)Business;
(d) sellwithout limiting Sellers' obligations or rights under Section 2.9, transferSellers will not knowingly use, lease, pledge embed or otherwise encumberincorporate Divested Technology (or Technology that would be Divested Technology if the Closing were the date hereof), abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Propertythe Transferred Technology contained in the Sniffer Products in any product of the Retained Business, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who that such Technology is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties used as of the date hereof;
(e) terminate, amend or otherwise modify in any material respect, or violate the material terms of any of the Transferred Contracts or Retained Beneficial Contract, other than in the Ordinary Course of Business;
(f) commence any Litigation related primarily to the Business other than any Litigation to enforce the Transferred IP or the Retained IP or to collect accounts receivable or enforce any Customer Contracts;
(g) sell, lease, license or otherwise dispose of any of tangible assets used primarily in the Business other than (i) sales of Inventory in the Ordinary Course of Business; (ii) sales of obsolete or worn-out equipment no longer used in the Business, (iii) non-exclusive licenses of Sniffer Products to Customers in the Ordinary Course of Business, or (iv) manufacturing or assembly related licenses in the Ordinary Course of Business;
(h) grant any Lien, or permit or suffer to exist any Lien other than a Permitted Lien, in any of the Acquired Assets or cancel any material debts or waive any material claims or rights pertaining to the Business of the Acquired Assets;
(i) fail to maintain the Acquired Assets in good operating condition (ordinary wear and tear excepted);
(j) enter into any Intercompany Agreement other than in the Ordinary Course of Business; STARBURST ASSET PURCHASE AGREEMENT
(k) fail to maintain Inventory at a level sufficient to serve the then-current requirements of the Business and otherwise in amounts consistent with the Business' past Inventory management practices in the Ordinary Course of Business;
(l) except as set forth on Section 7.1(l) of the Seller Disclosure Schedule, adopt, amend, modify or terminate any bonus, profit sharing, incentive, employment, retention, severance, change in control, retirement, welfare or other plan, contract or commitment for the benefit of any of the Seller Employees, except to the extent it would not result in any liability to Purchaser and would not create any financial incentive for a Seller Employee to remain in the employ of any Seller after the Closing Date (other than any benefits or other compensation arrangements implemented broadly and consistently NAI-wide);
(i) materially change the pricing or royalties set or charged by any Seller in connection with the Business, and (ii) except for any modification effected broadly and consistently across NAI's sales force that apply uniformly to the sale of Sniffer Products and Sellers' other products, adopt or modify the commission or other incentives to be paid to Sellers' sales force relating to the Sniffer Products or modifying the sales quotas for Sniffer Products for any Seller Employee;
(n) except as set forth in Section 7.1(n) of the Seller Disclosure Schedule, enter into any Business Contract that would provide for customer support or maintenance for a term exceeding one (1) year;
(o) increase the base salary or wage rate of any Seller Employee, except in the Ordinary Course of Business for those Seller Employees who are not the Sniffer management employees listed in Section 7.1(o) of the Seller Disclosure Schedule;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) except in the ordinary course Ordinary Course of business consistent with past practice; orBusiness, terminate any Seller Employee or hire any employees to work primarily in the Business;
(q) authorize enter into any joint marketing or commit development agreement, any agreement concerning a partnership, joint venture or business alliance agreement;
(r) change, amend or otherwise modify any accounting practice or policy with respect to Sniffer Deferred Revenue, except as required by GAAP;
(s) (i) change, amend or otherwise modify any existing Business Contracts, except in connection with the sale of additional products to an existing customer in the Ordinary Course of Business, or (ii) take any other action outside the Ordinary Course of Business, in either case in a manner that results in reversals of the amount of manual deferred revenues of the Business;
(t) change, amend or otherwise modify any material practice or policy relating to the purchasing, manufacturing, distribution, marketing, sales or operations of Sellers relating to the STARBURST ASSET PURCHASE AGREEMENT Business, including engaging in any promotional sales or discounts, other than in the Ordinary Course of Business; or (u) agree in writing or otherwise to do any action prohibited under this Section 8.01of the foregoing.
Appears in 1 contract
Conduct of Business. From the date The Seller, Stockholder, Buyer and MRI shall ------------------- refrain from taking any action which would render any of this Agreement until the earlier their respective representations and warranties inaccurate in any material respect as of the Closing Date and the termination of Date, except for changes therein permitted by this Agreement or resulting from transactions carried out pursuant to this Agreement. Each party shall promptly notify the other of any action, suit, proceeding or investigation that may be threatened, brought, asserted or commenced of which it becomes aware that would have been required to be disclosed hereunder or listed, in accordance with its terms the case of the Seller or the Stockholder, on Schedule 2.10 hereto, if such action, suit, proceeding or investigation ------------- had arisen or were in existence on or prior to the date hereof. The Seller and Stockholder shall act diligently and reasonably (a) to preserve the “Interim Period”)Purchased Assets, (b) to keep available, if so requested by Buyer, the Company shallservices of the present personnel of the Center, (c) to preserve the goodwill of suppliers and shall cause its Subsidiaries tocustomers of the Center and others having business relations therewith, except (d) to comply with all applicable laws, rules and regulations and (e) to prepare and file all tax returns required to be filed. Except as expressly otherwise contemplated by this Agreement, as required by applicable Law Agreement or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent by Buyer, the Seller shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct the Business and operate its business operations of the Center in all material respects only in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeessubstantially as presently operated. Without limiting the generality of Notwithstanding the foregoing, except as expressly otherwise contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditionedby Buyer, withheld, delayed or denied), the Company Seller shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amendsell, restate lease, transfer or modify any terms otherwise dispose of or any agreement with respect (including transfers to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations Affiliates of the Company Seller), or mortgage or pledge, or impose or suffer to be imposed any Lien on, any Purchased Assets, or enter into any arrangement to do any of its Subsidiariesthe foregoing; (ii) increase the compensation payable to any employee except raises in the ordinary course consistent with past practice; (iii) enter into any material service or equipment contract; (iv) incur any material loss of customers (defined as any customers, the revenues from which constituted greater than 5% of the total 1995 or total 1996 revenues of the Seller); or (v) take any action or fail to take any action which would cause any representation made in Article Two not to be true and correct on the Closing Date. Until February 29, 1997, Stockholder and the Seller shall not (i) sell, agree or offer to sell, or negotiate for the purpose of selling, to any person other than Buyer any material asset of the Seller, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
the Seller's business, or (qii) authorize enter into any joint venture, lease or commit other agreement or agree to do transaction not in the ordinary course of business, or negotiate for the purpose of entering into any such agreement or transaction, or (iii) take any action prohibited under this Section 8.01which could have the effect of precluding the consummation of the transactions contemplated hereby.
Appears in 1 contract
Samples: Asset Purchase Agreement (Medical Resources Inc /De/)
Conduct of Business. From Pending each Closing, and taking into consideration the date of this Agreement until fact that the earlier Seller is not the operator of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shallPuget Transmission Assets, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, provided for in Section 8.1(a) or as reasonably necessary under emergency circumstances (or if required by or prohibited pursuant to applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or deniedColstrip Transmission Project Agreement), use commercially reasonable efforts and always subject to and consistent with the extent of Seller’s rights and limitations under the Colstrip Transmission Project Agreement, Seller shall comply with the following:
(i) Seller shall conduct and operate its business related to the Puget Transmission Assets, and utilize its Commercially Reasonable Efforts to cause the Puget Transmission Assets to conduct its business, in the ordinary course consistent in accordance with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) not make any material change with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and respect thereto;
(ii) Seller shall comply in all material respects with the Colstrip Transmission Project Agreement;
(iii) Seller shall take all Laws applicable Commercially Reasonable Efforts to it preserve and its Subsidiaries and their respective businessesprotect the Puget Transmission Assets, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of subject to the terms of the CCPS substantially Colstrip Transmission Project Agreement and applicable Laws;
(iv) except as set forth on Schedule 8.1, Seller shall not assign, terminate, amend, give any consent with respect to or waive any rights under, in the form set out any material respect, any Material Contract;
(v) Seller shall not take any action or enter into any commitment with respect to or in Exhibit E, the conversion contemplation of any CCPS in accordance with their termsliquidation, dissolution, recapitalization, reorganization, or entering into such documents and instruments and taking such actions as may be reasonably required by other winding up of its business or operations related to the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the CompanyPuget Transmission Assets, its Subsidiaries or the SS Group in respect of such Indebtedness), except as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementLaws;
(bvi) Seller shall not grant any express further Lien on any of the Puget Transmission Assets, except in for Permitted Liens, those Liens that will be terminated, without cost to Buyer, at each Closing;
(vii) Seller shall provide prompt written disclosure to the ordinary course Buyer of business all relevant information which comes to the attention of the Seller in relation to the Company’s Subsidiaries any fact or matter (i) make, declare, set aside whether existing on or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on before the date of this Agreement, (iAgreement or arising afterwards) grant any material increase in compensation, benefits or severance to any key employee or manager which may constitute a breach of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value Seller’s representations and warranties set forth in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practiceARTICLE 5; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.and
Appears in 1 contract
Conduct of Business. From Tenant’s business at the date of this Agreement until Premises shall be conducted under the earlier of the Closing Date name “Xx. Xxxx,” or such other name as may be mutually agreed to in writing by Landlord and the termination of this Agreement in accordance with its terms Tenant (the “Interim PeriodTrade Name”). Landlord acknowledges Tenant’s proprietary rights in and to the trademarks, service marks, tradenames and other intellectual property rights of Tenant’s Trade Name and logo. In that regard, Tenant shall have the Company shallright to prohibit any advertising, promotion or display by Landlord utilizing Tenant’s Trade Name or logo which, in Tenant’s sole opinion, impairs or would tend to impair the reputation of Tenant or its affiliates. Prior to utilizing Tenant’s Trade Name or logo on any advertising by Landlord, Landlord shall submit to Tenant for written approval a tangible specimen of advertising material proposed to be utilized by Landlord. Tenant shall either approve or disapprove such usage within twenty (20) days of such submission. Tenant’s failure to disapprove within such twenty (20) day period shall be deemed approval. The rights granted to Landlord pursuant to this Section 8.2 shall terminate upon the expiration of the Lease Term or the earlier termination for breach of this Lease or Tenant’s cessation of the use of the Trade Name or termination of Tenant’s right to use the Trade Name. Tenant represents and warrants to Landlord that Tenant has the legal right to use the Trade Name, and Tenant shall cause its Subsidiaries toindemnify and hold Landlord harmless from and against any claims, except losses or damages incurred by Landlord to the extent arising from a breach of such representation and warranty. Subject to the provisions of this Section 8.2, Tenant’s restaurant at the Premises shall be and remain open for dinner nightly from 6:00 p.m. through 11:00 p.m. (Tenant hereby agreeing to accept last orders up to 11:00 p.m.). The parties acknowledge and agree that the foregoing hours of operation are minimum hours, and Tenant shall have the right, but not the obligation, to open for longer hours on any day or days as expressly contemplated by this Agreementdetermined in Tenant’s sole discretion, including opening for breakfast and/or lunch. Tenant shall further have the right to close on not more than two (2) days per calendar year for any reason, or no reason, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and Tenant may elect in its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditionedsole discretion; provided, withheldhowever, delayed or denied), use commercially reasonable efforts to that (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships such two (contractual or otherwise2) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant day limitation shall not apply to any COVID-19 Measures applicable to the Company and its Subsidiaries period of closure resulting from casualty, eminent domain, temporary closures for repairs or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall notalterations, and such other reasons beyond the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate reasonable control of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the TransactionsTenant, (ii) in the case Tenant shall provide Landlord with no less than sixty (60) days’ prior notice of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or closure, and (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or Tenant shall not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect close on the date of this Agreementfollowing days: New Year’s Eve, (i) grant any material increase in compensationSuper Bowl weekend, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its SubsidiariesNCAA Final Four weekend, or any other individual who is providing national or will provide services to the Company or any of its Subsidiariesstate three-day weekend (i.e. Labor Day, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existenceMemorial Day, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businessesetc.), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.
Appears in 1 contract
Samples: Lease (Hard Rock Hotel Inc)
Conduct of Business. From and after the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to hereof the Company and its Subsidiaries or as consented to by RMG II in writing (which consent the Sellers shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by cause the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) operated only in the ordinary course of business consistent with past practice, and shall:
(a) operate the Cellular System in accordance with the FCC Authorizations and all other Authorizations, and comply with all laws, rules and regulations applicable to the Company, including the regulations of the FCC and CPUC;
(b) except for inventory sold in the ordinary course of business, refrain from making any sale, lease, transfer or (iv) hire other disposition of any employee of the assets of the Company other than in connection with replacements with assets of like use and value, or with the prior written approval of Purchaser which approval shall not be unreasonably withheld;
(c) refrain from modifying, amending or altering or terminating any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, Existing Contracts other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice, and from waiving or canceling any material default or breach or modifying, altering or terminating any right or asset of the Company without Purchaser's prior written approval, which approval will not be unreasonably withheld;
(d) maintain insurance on the assets and properties of the Company comparable to that maintained prior to the date hereof, and use the proceeds of any claims for loss under such policies, together with such other funds as may be required, to repair, replace, or restore to their former condition any assets or properties which may be damaged by fire or other casualty, all as soon as reasonably possible;
(e) maintain its books and records in accordance with prior practice; maintain all of its property and assets in their present condition, ordinary wear and tear excepted; maintain supplies of inventory and spare parts consistent with past practice; and otherwise operate its business in the ordinary course in accordance with past practices;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice, refrain from changing the Cellular System's agents' commission rate, sales practices (including the quality of the credit of subscribers contracting for cellular telephone service) or marketing practices without Purchaser's approval;
(g) other than increases in current base salary of not greater than 5%, refrain from increasing the compensation payable or to become payable to any employee or agent of the Company without Purchaser's approval;
(h) refrain from entering into any contract or renewal of any existing contract for the employment of any employee or agent of the Company other than "at-will" employees and agents;
(i) use its best efforts to (x) keep the business organization of the Company intact, (y) retain the services of the key employees of the Cellular System, and (z) maintain good relationships with its employees, suppliers, advertisers, subscribers, agents and others having business relations with it, in each case in accordance with past practices;
(j) refrain from changing the Charter or by-laws of the Company;
(k) continue to advertise, promote and market the Cellular System and its services in a manner consistent with past practice, and in any event from the date hereof through the Closing, spend on advertising, marketing and promotion, on an aggregate basis from the date hereof to the Closing, the amounts set forth in the Operating Budget.
(l) refrain from subjecting any of the assets or properties of the Company to any new Encumbrance;
(m) refrain from doing or omitting to do any act which will cause a breach of, or default under, or termination of (except in accordance with its terms), any material contract, agreement, lease, commitment, or obligation to which the Company is a party or by which it is bound;
(n) provide to the Purchaser, concurrently with filing thereof, copies of all reports to and other filings with the FCC;
(o) not permit any of the Authorizations to expire or to be surrendered or voluntarily modified in a matter adverse to the Business, or take any action which would reasonably be expected to cause the Authorizations or any other governmental authority to institute proceedings for the suspension, revocation or limitation of rights under any of the Authorizations; oror fail to prosecute with due diligence any pending applications to any governmental authority;
(p) notify Purchaser in writing promptly after learning of the institution or threat of any material action against the Company in any court, or any action against the Company before the FCC or the CPUC or any other governmental agency, and notify Purchaser in writing promptly upon receipt of any administrative or court order relating to the Business;
(q) authorize notify Purchaser of the hiring of any new employee, any material change in job function of an employee, and the termination of any employee;
(r) pay or commit cause to be paid or agree provide for all Taxes of or relating to do the Company, the Shares and the employees required to be paid to city, county, state, federal and other governmental units up to the Closing Date and refrain from extending any statute of limitations with respect to such Taxes;
(s) refrain from taking any action prohibited not in the Company's usual course of business without Purchaser's prior approval;
(t) cooperate with Purchaser in connection with Purchaser's efforts to identify the current employees of the Company that Purchaser would like to continue to hire following the Closing consistent with all applicable federal, state and/or local employment laws, rules and regulations;
(u) refrain from declaring or paying any dividends or making any distribution upon, or redeeming or repurchasing any shares;
(v) refrain from creating, incurring, assuming, guaranteeing, being or remaining liable, contingently or otherwise, with respect to any indebtedness, other than indebtedness of the Company not to exceed in the aggregate the amount outstanding at December 31, 1997;
(w) refrain from being a party to any merger or consolidation or other transfer of any shares of the capital stock of the Company;
(x) refrain from increasing the amounts paid to Unitel pursuant to the Management Contract;
(y) refrain from prepaying any indebtedness for borrowed money (other than repayments of advances under this Section 8.01its existing lines of credit with financial institutions in the ordinary course of its business) or prepaying any lease or other contractual obligations;
(z) continue to make all capital expenditures in connection with the operation of the Business when and as required by its capital expenditures in the Budget as set forth IN SCHEDULE 4. 17(a)(iii) as are required prior to the Closing Date; and
(aa) change the rates charged to Subscribers except pursuant to promotional programs approved by Purchaser, which approval will not be unreasonably withheld.
Appears in 1 contract
Samples: Securities Purchase Agreement (Dobson Communications Corp)
Conduct of Business. From During the period from the date of this Agreement and continuing until the earlier of the Closing Date and the termination of this Agreement pursuant to its terms or the Effective Time of Merger I, each party agrees, except to the extent that the other party shall otherwise consent in writing or as otherwise set forth in Section 4.1 of the Disclosure Schedule, to carry on its business diligently and in accordance with good commercial practice and to carry on its terms (business in the “Interim Period”)usual, regular and ordinary course, in substantially the Company shallsame manner as heretofore conducted, to pay its debts and taxes when due subject to good faith disputes over such debts or taxes, to pay or perform other material obligations when due, and shall cause use its Subsidiaries tocommercially reasonable efforts consistent with past practices and policies to preserve intact its present business organization, except as expressly contemplated by this Agreementkeep available the services of its present officers and employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others with which it has business dealings. In furtherance of the foregoing and subject to applicable law, each party agrees to notify the other party, as required by applicable Law promptly as practicable, prior to taking any material actions or pursuant to making any COVID-19 Measures applicable material management decisions with respect to the Company and conduct of its Subsidiaries or as consented to by RMG II in writing (business. In addition, without the prior written consent of the other party, which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality each of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company parties shall not, and the Company shall cause not permit its Subsidiaries not subsidiaries to, during do any of the Interim Periodfollowing:
(a) amend or otherwise change its Certificate of Incorporation or amend Bylaws, or otherwise alter its corporate structure through merger, liquidation, reorganization or otherwise;
(b) issue, sell, pledge, dispose of or encumber, or authorize the certificate issuance, sale, pledge, disposition or encumbrance of, any shares of incorporationcapital stock of any class, bylaws or any options, warrants, convertible securities or other organizational documents rights of the Company any kind to acquire any shares of capital stock, or any other ownership interest (including, without limitation, any phantom interest) (except for the issuance of its Subsidiaries shares of common stock issuable pursuant to employee stock options under currently existing employee stock option plans or pursuant to currently outstanding warrants, as the case may be, which options, warrants or rights, as the case may be, are outstanding on the date hereof);
(c) redeem, repurchase or otherwise acquire, directly or indirectly, any shares of capital stock of such party;
(d) sell, pledge, dispose of or encumber any assets (except for (i) in the case sales of the Company, for any such change or amendment made assets in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, in a manner consistent with past practice and (ii) in the case dispositions of the Company’s Subsidiaries, for any such change obsolete or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreementworthless assets);
(be) except in the ordinary course of business in relation fail to make any expenditures that are necessary and sufficient to maintain or, to the Company’s Subsidiaries extent budgeted or consistent with the past practice, improve the conditions of its properties, facilities and equipment, including, without limitation, budgeted expenditures relating to maintenance, repair and replacement;
(f) accelerate, amend or change the period (or permit any acceleration, amendment or change) of exercisability of options or warrants or authorize cash payments in exchange for any options;
(i) make, declare, set aside aside, make or pay any dividend or other distribution payable (whether in cash, stock or property or any combination thereof) in respect of any of its capital stock, property or otherwise with respect except that a wholly owned subsidiary may declare and pay a dividend to any capital stock or other equity interests in any of the Company or its Subsidiariesparent, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of their its capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iviii) amend the terms of, repurchase, redeem or otherwise acquire, or offer permit any subsidiary to repurchase, redeem or otherwise acquire, any shares of their capital stock its securities or other equity interestsany securities of its subsidiaries, or propose to do any of the foregoing;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(dh) sell, transfer, leaselicense, pledge sublicense or otherwise encumber, abandon, cancel or convey or dispose of any assetsmaterial IP Rights, properties or business of the Company amend or modify any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business existing agreements with respect to any material IP Rights;
(i) not acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee (other than guarantees of bank debt of its subsidiaries entered into in the ordinary course of business) or endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, except in the ordinary course of business consistent with past practice; (iii) enter into or materially amend any material contract or agreement other than in the ordinary course of business; (iv) authorize any capital expenditures or purchase of fixed assets which are, in the aggregate, in excess of $5,000,000 50,000, taken as a whole (except pursuant to a capital expenditure budget approved in writing by both parties); or (v) enter into or amend any contract, agreement, commitment or arrangement to effect any of the matters prohibited by this Section 4.1(i);
(j) increase the compensation payable or to become payable to its officers or employees, except for increases in salary or wages of employees who are not officers in accordance with past practices, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer (except for officers who are terminated on an involuntary basis) or other employee, or establish, adopt, enter into or amend any employee benefit plan;
(k) take any action, other than as required by GAAP, to change accounting policies or procedures;
(l) make any material Tax election inconsistent with past practices, settle or compromise any material federal, state, local or foreign Tax liability, enter into any Tax allocation agreement, Tax sharing agreement, pre-filing or advance pricing agreement, Tax indemnity agreement or closing agreement, or agree to an extension of a statute of limitations for any assessment of any Tax;
(m) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the aggregateordinary course of business and consistent with past practice of liabilities reflected or reserved against in the financial statements of Raven or Parent, (ii) in respect of any power generating assetsas applicable, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, or incurred in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred as may otherwise be contemplated by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make enter into any change in financial accounting methodsmaterial partnership arrangements, principles joint development agreements or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAPstrategic alliances;
(o) fail take, or agree in writing or otherwise to maintaintake, cancel or materially change coverage under any insurance policy of the actions described in form and amount equivalent Sections 4.1(a) through (n) above. If a party wishes to obtain the consent of the other party to take actions for which prior consent is required pursuant to this Section 4.1, it shall request such consent in all material respects writing by telecopy to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as attention of the date hereof;
(p) fail in a material manner to manage its working capital (including Chief Executive Officer and the timing of collection of accounts receivable and Chief Financial Officer of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01other party. A consent signed by either such officer shall be deemed sufficient for purposes hereof.
Appears in 1 contract
Samples: Merger Agreement (Vaxgen Inc)
Conduct of Business. From the date of this Agreement until the earlier of the Closing Date and or the termination of this Agreement Agreement, Seller shall operate the Acquired Assets and the Operations in accordance the ordinary course of business consistent with its terms (the “Interim Period”)recent past practices; conduct all turnarounds, the Company shalltank maintenance and repair, and capital expenditures as are in Seller’s business plan for such period all as more particularly described in Schedule 10.01; and operate the Acquired Assets and the Operations in material compliance with all Applicable Law and will not, without the consent of Buyer (which consent shall cause its Subsidiaries tonot be unreasonably withheld, conditioned or delayed), except as expressly contemplated by this Agreement, as required by applicable Law engage in any practice, take any action, or pursuant to enter into any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in transaction outside the ordinary course consistent with past practiceof business. Additionally, including Seller also agrees prior to preserve the goodwill Closing to take such commercially reasonable actions as may be mutually agreeable by Buyer and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors Seller and creditors Buyer shall reimburse Seller for all costs incurred relating to such actions and others having material business relationships with it shall execute such documents and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable instruments related to it and its Subsidiaries and their respective businesses, assets and employeessuch actions as reasonably requested by Seller. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including Seller shall not, without the amendment consent of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing Buyer (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denied)delayed) or except as expressly contemplated by this Agreement, do any of the Company shall not, and following in relation to the Company shall cause its Subsidiaries not to, during the Interim PeriodAcquired Assets:
(a) change sell, mortgage, transfer or amend the certificate of incorporation, bylaws or other organizational documents convey any of the Company Acquired Assets except in the ordinary course of business, or waive or relinquish any of its Subsidiaries except material right under any Contracts, Permits, Environmental Permits, or Leases and Easements;
(b) (i) in incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee, endorse, or otherwise as an accommodation become responsible for, the case obligations of the Companyany Person, or make any loans or advances except for any such change or amendment made borrowings in the ordinary course of business and which that will not have an material adverse impact on the Company’s ability be repaid prior to perform its obligations under this Agreement or to consummate the Transactions, Closing; (ii) in the case sell, lease or otherwise dispose of, or grant any Lien except Permitted Encumbrances with respect to any Acquired Assets, other than sales of the Company’s Subsidiaries, for any such change goods or amendment made services in the ordinary course of business or (iii) as expressly contemplated by enter into or amend a contract, agreement, commitment, or arrangement with respect to any matter set forth in this paragraph (a); provided that notwithstanding any provision of this Agreement, Seller shall be entitled to dividend and/or distribute to its Affiliates, at any time, and from time to time, such cash generated by the Operations;
(bc) except in the ordinary course of business business, amend in relation any material respect, when taken as a whole, any material contract or agreement related to the Company’s Subsidiaries (i) make, declare, set aside Acquired Assets or pay the Operations or terminate any dividend such material contract or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any agreement before the expiration of the Company or its Subsidiariesterm thereof, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment extent any such material contract or refinancing of agreement terminates or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer is terminable pursuant to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries terms in the ordinary course of business;
(d) enter into any material contract related to the Acquired Assets or the Operations that will survive the Closing;
(e) enter into any material settlement of any pending or threatened litigation that will adversely impact the Acquired Assets or the Operations;
(f) consent to the entry of any decree or order by any Governmental Authority that will adversely impact the Acquired Assets or the Operations;
(g) increase the compensation payable to or to become payable to Current Employees other than normal salary increases and bonus compensation consistent with past practices;
(h) acquire or construct any assets or properties material to the Acquired Assets or the Operations except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, pursuant to contracts in effect on as of the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;; or
(i) amend in a manner materially detrimental commit to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01foregoing.
Appears in 1 contract
Conduct of Business. From a. In no event shall Tenant use or permit the date of this Agreement until the earlier use of the Closing Date Premises for any purpose other than general office use. Landlord and Tenant hereby acknowledge and agree that the termination foregoing use restriction is an absolute prohibition against a change in use of this Agreement the Premises as contemplated under California Civil Code section 1997.230. Tenant hereby acknowledges and agrees that Landlord has carefully selected Tenant in accordance order to produce a mix of Tenant uses within the Project compatible and consistent with its terms (the “Interim Period”)design of the Building, with other uses of the Company shallBuilding, and with the operation of a profitable and successful mixed-use office/retail project; provided, however, that the selection of project tenants shall cause its Subsidiaries tobe in Landlord's sole discretion and Landlord, except as expressly contemplated by this Agreementin making such selection, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioneddeemed to be warranting that any use of the Building made by any such tenant is or will be compatible or consistent with the design of the Building, withheldwith other uses of the Building, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business will result in the ordinary course consistent with past practice, including operation of a profitable and successful mixed-use office/retail project. Tenant shall not do or permit anything to preserve be done in or about the goodwill and present business relationships (contractual Premises nor bring or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply keep anything therein which will in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting any way increase the generality existing rate of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of or affect any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee fire or other credit support granted by insurance upon the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries Building or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company Project or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stockcontents, or issue, sell, transfer, pledge, encumber or grant cause cancellation of any right, option or other commitment for insurance policy coveting the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of Building or the enforcement of Project or any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company part thereof or any of its Subsidiariescontents. Tenant shall not, including Real Propertywithout prior consent of Landlord, except for sales, transfers, leases, pledges bring into the Building or other encumbrances the Premises or dispositions of assets, properties use or business (i) not in excess of $5,000,000 incorporate in the aggregatePremises any apparatus, (ii) in respect of any power generating assetsequipment or supplies that may cause substantial noise, with a capacity not in excess of 500 megawatts, (iii) as between odor or vibration or overload the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries Premises or the Company to secure Indebtedness incurred by Building or any of its utility or elevator systems or jeopardize the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts structural integrity of the Company Building or its Subsidiariesany part thereof. Tenant and Tenant's Agents shall not use, in effect store or dispose, or allow the use, storage or disposal of, any Hazardous Materials (defined below) on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager portion of the Company Project. Tenant shall indemnify, defend with counsel acceptable to Landlord, and hold Landlord and Landlord's employees, agents, partners, officers, directors and shareholders harmless from and against any and all claims, actions, suits, proceedings, orders, judgment, losses, costs, damages, liabilities, penalties or its Subsidiaries with annual base compensation of more than $150,000expenses (including, except in the ordinary course of business consistent with past practice (iiwithout limitation, attorneys' fees) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except arising in connection with the promotionbreach of the obligations described in the previous sentence. As used in this paragraph, hiring Hazardous Material means any chemical, substance or firing material which has been determined or is hereafter determined by any federal, state or local governmental authority to be capable of posing risk of injury to health or safety, including, without limitation, petroleum, asbestos, polychlorinaled biphenyls, radioactive materials and radon gas. Tenant shall not do or permit anything to be done in or about the Premises which will in any way obstruct or interfere with the rights of other tenants or occupants of the Building or the Project or injure or annoy them or use or allow the Premises to b used for any improper, immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance in, on or about the Premises. Tenant shall not commit or suffer to be committed any waste in or upon the Premises. Tenant and Tenant's Agents shall comply with the provisions of any employee (to the extent permitted by clause (iv) declaration of this paragraph) in the ordinary course of business consistent with past practicecovenants, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission conditions and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially restrictions affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01Premises.
Appears in 1 contract
Samples: Office Lease (QCS Net Corp)
Conduct of Business. From With effect from the date of this Agreement until the earlier of the Closing Appointed Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, up to and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim PeriodEffective Date:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents each of the Company or any of its Subsidiaries except (i) in the case of the CompanyAmalgamating Companies shall, for any such change or amendment made in the ordinary course of carry on and be deemed to have carried on all business and which will not have an material adverse impact activities and shall hold and stand possessed of and shall be deemed to hold and stand possessed of all its estates, assets, rights, title, interest, authorities, contracts and investments for and on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactionsaccount of, (ii) and in the case of the Company’s Subsidiariestrust for, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementNetwork18;
(b) except in all profits and income accruing or arising to the ordinary course of business Amalgamating Companies, and losses and expenditure arising or incurred by them (including taxes, if any, accruing or paid in relation to the Company’s Subsidiaries (i) make, declare, set aside any profits or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employeesincome), pledgeshall, encumberfor all purposes, dispose be treated as and be deemed to be the profits, income, losses or expenditure (including taxes), as the case may be, of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestsNetwork18;
(c) except any of the rights, powers, authorities or privileges exercised by the Amalgamating Companies, shall be deemed to have been exercised for and on behalf of, and in trust for and as otherwise permitted an agent of Network18. Similarly, any of the obligations, duties and commitments that have been undertaken or not restricted discharged by this Section 8.01 enter intothe Amalgamating Companies, assume, assign, partially or completely amend or modify any material term shall be deemed to have been undertaken for and on behalf of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);and as an agent for Network18; and
(d) sellall taxes (including, transferwithout limitation, leaseincome tax, pledge sales tax, service tax, value added taxes, goods and service taxes, etc.) paid or payable by the Amalgamating Companies, shall be on account of Network18 and, insofar as it relates to the tax payment (including, without limitation, income tax, sales tax, service tax, value added taxes, goods and service taxes, etc.), whether by way of deduction at source, advance tax or otherwise encumberhowsoever, abandonby the Amalgamating Companies, cancel or convey or dispose of any assetsthe same shall be deemed to be the corresponding item paid by Network18, properties or business of the Company or any of its Subsidiariesand, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiariesshall, in all proceedings, be dealt with accordingly. With effect from the ordinary course of business Appointed Date and consistent with past practice or (v) up to and including the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;Effective Date:
(ea) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained Network18 shall with respect to the Company or any Transferred Business Undertakings, carry on and be deemed to have carried on all business and activities and shall hold and stand possessed of and shall be deemed to hold and stand possessed of all its Subsidiaries or their assets or properties as of estates, assets, rights, title, interest, authorities, contracts and investments for and on account of, and in trust for, the date hereofrespective Transferee Companies;
(pb) fail in a material manner all profits and income accruing or arising to manage its working capital Network18, and losses and expenditure arising or incurred by them (including taxes, if any, accruing or paid in relation to any profits or income) with respect to the timing of collection of accounts receivable Transferred Business Undertakings, shall, for all purposes, be treated as and be deemed to be the profits, income, losses or expenditure (including taxes), as the case may be, of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; orrespective Transferee Companies;
(qc) authorize any of the rights, powers, authorities or commit privileges exercised by Network18 with respect to the Transferred Business Undertakings, shall be deemed to have been exercised for and on behalf of, and in trust for and as an agent of the respective Transferee Companies. Similarly, any of the obligations, duties and commitments that have been undertaken or agree discharged by Network18 with respect to do any action prohibited under this Section 8.01the Transferred Business Undertakings, shall be deemed to have been undertaken for and on behalf of and as an agent for the respective Transferee Companies; and
(d) all taxes (including, without limitation, income tax, sales tax, service tax, value added taxes, goods and service taxes, etc.) paid or payable by Network18 with respect to the Transferred Business Undertaking, shall be on account of the respective Transferee Companies and, insofar as it relates to the tax payment (including, without limitation, income tax, sales tax, service tax, value added taxes, goods and service taxes, etc.), whether by way of deduction at source, advance tax or otherwise howsoever, by Network18 with respect to the Transferred Business Undertaking, the same shall be deemed to be the corresponding item paid by the respective Transferee Companies, and, shall, in all proceedings, be dealt with accordingly.
Appears in 1 contract
Conduct of Business. From the date of this Agreement until through the earlier of the Closing Date and the or valid termination of this Agreement in accordance with its terms pursuant to Article X (the “Interim Period”), the Company Members shall, and shall cause the Company and its Subsidiaries to, except as expressly otherwise contemplated by this Agreement, as Agreement or the Ancillary Agreements or required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II Acquiror in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its the business of the Company in the ordinary course consistent with past practicepractice and use commercially reasonable efforts to, including with respect to the Company and each of its Subsidiaries, retain the services of its current officers, preserve the goodwill and present business relationships (contractual or otherwise) with of its customers, suppliers, joint venture partners, distributors suppliers and creditors and others having material other Persons with whom it has significant business relationships with it and retain maintain its current officers properties and other key employees and (ii) comply assets in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeesrespects. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment set forth on Section 6.1 of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries Member Disclosure Letter or as consented to by RMG II Acquiror in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), ) the Company Members shall not, and shall cause the Company shall cause and its Subsidiaries not to, during except as otherwise expressly contemplated by this Agreement or the Interim PeriodAncillary Agreements or required by Law or any COVID-19 Measures:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents Governing Documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for except as otherwise required by applicable Law, or form or cause to be formed any such change or amendment made in new Subsidiary of the ordinary course of business or (iii) as expressly contemplated by this AgreementCompany;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside make or pay declare any dividend or distribution payable to the Members of the Company or make any other distributions in cashrespect of any of the Company’s or any of its Subsidiaries’ capital stock or equity interests, other than Tax Distributions consistent with past practice;
(c) split, combine, reclassify, recapitalize or otherwise amend any terms of any equity interest or series of the Company’s or any of its Subsidiaries’ capital stock or equity interests, except for any such transaction by a wholly-owned Subsidiary of the Company that remains a wholly-owned Subsidiary of the Company after consummation of such transaction;
(x) xxxxxxxx, xxxxxxxxxx, redeem or otherwise acquire any issued and outstanding equity capital, outstanding shares of capital stock, property or otherwise with respect to any capital stock membership interests or other equity interests in any of the Company or its Subsidiaries;
(e) enter into, (ii) effect modify in any recapitalization, reclassification, split material respect or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer terminate (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract contract of a type required to be listed on Schedule 4.13(aSection 4.11 of the Member Disclosure Letter (excluding any Company Benefit Plan), or any Real Property Lease, in each case, other than entry into such agreements in the ordinary course of business consistent with past practice or as required by Law;
(df) sell, assign, transfer, leaseconvey, pledge lease or otherwise encumber, abandon, cancel or convey or dispose of any assets, material tangible assets or properties or business of the Company or any of its Subsidiaries, including the Leased Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) dispositions of obsolete or worthless equipment, or (ii) transactions in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $500,000.00;
(g) acquire any ownership interest in any real property;
(h) except as otherwise required by Law, or the terms of any Company Benefit Plan as in effect on the date hereof, (i) grant any severance, retention, change in control or termination or similar pay, except (A) with respect to retention of any individual with annual base pay not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries130,000.00, in the ordinary course of business and consistent with past practice practice, (B) in connection with promotion or (v) the creation hiring of any pledgeindividual with annual base pay not in excess of $130,000.00 and (C) with respect to severance, encumbrance termination, or other security interest over similar pay, to any landemployee with annual base pay not in excess of $130,000.00 and whose employment terminates after the date hereof, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
business consistent with past practice, (eii) except as otherwise required by Law terminate, adopt, enter into or existing materially amend any Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this AgreementPlan, (iiii) grant any material materially increase in the cash compensation, bonus opportunity or employee benefits of any employee, officer, director or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000other individual service provider, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend in respect of any Company Benefit Plan other than individual with annual base pay not in the ordinary course excess of business with respect to annual renewals$130,000.00, (iiiiv) grant establish any trust or provide take any material bonus, severance or termination payments or benefits other action to secure the payment of any employee or director of compensation payable by the Company or its any of the Company’s Subsidiaries or (v) take any action to amend or waive any performance or vesting criteria or to accelerate the time of payment or vesting of any compensation or benefit payable by the Company or any of the Company’s Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or practice in the case of any individual with annual base pay not in excess of $130,000.00;
(ivi) hire any employee with respect to the business of the Company or any of and its Subsidiaries, (i) make any material change in the selling, distribution, advertising, terms of sale or collection practices that is inconsistent with past practice; or (ii) engage in the practice of “channel stuffing” or any similar program, activity or other individual who action (including any rebate, discount, chargeback or refund policy or practice) that, in each case, is providing intended or will provide would reasonably be expected to result in acquisition of products or services to from the Company or any and its Subsidiaries that is materially in excess of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business normal customer purchasing patterns consistent with past practicecourse of dealing with the business of the Company and its Subsidiaries during the twelve (12) months prior to the date hereof;
(fj) (i) fail to maintain its existenceacquire by merger or consolidation with, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses)or merge or consolidate with, (iii) or purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in substantially all or a substantial material portion of the assets of) any business or , any corporation, partnership, association, joint venture or other business organization or division thereof thereof;
(k) make any material loans or material advances to any Person, except for (i) advances to employees, officers or independent contractors of the Company or any of the Company’s Subsidiaries for indemnification, attorneys’ fees, travel and other than expenses incurred in the ordinary course of business in relation to the Company’s Subsidiaries), consistent with past practice or (ivii) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than extended payment terms for customers in the ordinary course of business consistent with past practice;
(l) (A) make or change any material election in relation to the Company’s Subsidiaries)respect of material Taxes, (vB) sellmaterially amend, transfer, license, assign, fail to maintain modify or otherwise dispose change any filed material Tax Return, (C) adopt or request permission of or encumber any taxing authority to change any accounting method in respect of material Taxes, (D) enter into any “closing agreements” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) with any Governmental Authority in respect of material assets Taxes, (E) settle any claim or assessment in respect of material Intellectual Property pertaining Taxes, (F) affirmatively surrender or allow to the business expire any right to claim a refund of material Taxes or (G) consent to any extension or waiver of the Company limitation period applicable to any claim or assessment in respect of material Taxes or in respect of any material Tax attribute that would give rise to any claim or assessment of its Subsidiaries with a value in excess of $1,000,000 Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business);
(m) (i) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Subsidiary of the Company or guaranty any debt securities of another Person, other than any Indebtedness or guarantee incurred in the ordinary course of business and in an aggregate amount not to exceed $500,000.00 or (ii) discharge any secured or unsecured obligations or liabilities (whether accrued, absolute, contingent or otherwise) which individually or in the aggregate exceed $500,000.00, except as otherwise contemplated by this Agreement or as such obligations become due;
(n) issue any additional securities, including Membership Units or securities exercisable for or convertible into Membership Units, other than issuances of equity securities upon the exercise or settlement of Company Awards outstanding as of the date hereof;
(o) adopt a plan of, or (vi) adopt or otherwise enter into a plan of or effect a, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger)Subsidiaries;
(gp) make waive, release, settle, compromise or otherwise resolve any capital expenditures (inquiry, investigation, claim, Action, litigation or commitment to make any capital expenditures) other Legal Proceedings, except in excess the ordinary course of business or where such waivers, releases, settlements or compromises involve only the payment of monetary damages in an amount less than $1,000,000 (individually for any project (or set of related projects) or $5,000,000 500,000.00 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(hq) make any loans, advances grant to or capital contributions toacquire from, or investments inagree to grant to or acquire from, any other Person, other than, in relation to the Company’s Subsidiaries, except as would be granted on a non-exclusive basis or acquired in the ordinary course of business consistent with past practice or between any Person rights to any Intellectual Property that is material to the Company and its Subsidiaries, or dispose of, abandon or permit to lapse any rights to any Company Intellectual Property except for (i) the expiration of patents and copyrights that are Company Registered Intellectual Property in accordance with the applicable statutory term or (ii) as reasonably necessary in the ordinary conduct of business consistent with past practice;
(r) disclose or agree to disclose to any Person (other than Acquiror or any of its representatives) any trade secret or any other material confidential or proprietary information, know-how or process of the Company or any of its Subsidiaries, in each case, other than in the ordinary course of business consistent with past practice and pursuant to obligations to maintain the confidentiality thereof;
(s) make or commit to make capital expenditures other than in an amount not in excess of the amount set forth on Section 6.1(s) of the Member Disclosure Letter, in the aggregate;
(t) manage the Company’s and its Subsidiaries’ working capital in a manner other than in the ordinary course of business consistent with past practice;
(u) waive the restrictive covenant obligations of any current or former employee of the Company or any of the Company’s Subsidiaries;
(v) (i) limit the right of the Company or any of the Company’s Subsidiaries to engage in any line of business or in any geographic area, to develop, market or sell products or services, or to compete with any Person or (ii) grant any exclusive or similar rights to any Person, in each case, except where such limitation or grant does not, and would not be reasonably likely to, individually or in the aggregate, adversely affect, or materially disrupt, the ordinary course operation of the businesses of the Company and its Subsidiaries, taken as a whole;
(w) terminate without replacement, amend in a manner materially detrimental to the Company or any of its the Company’s Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew use reasonable best efforts to maintain, reinstate or maintain replace any material authorization from a Governmental Authority Authorization or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(kx) enter into terminate (without replacement with similar or better coverage) or amend in a manner materially detrimental to the Company or any agreement that restricts of the ability Company’s Subsidiaries any material insurance policy insuring the business of the Company or any of its Subsidiaries to engage or compete in any line of business, or the Company’s Subsidiaries; or
(y) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.016.1.
Appears in 1 contract
Samples: Equity Purchase Agreement (Waldencast Acquisition Corp.)
Conduct of Business. From the date of this Agreement until through the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Closing, the each Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II Acquiror in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable use commercially reasonable efforts to it preserve intact their business organizations, keep available the services of executive officers and its Subsidiaries key employees of the Companies and their Subsidiaries, preserve the current significant business relationships that the Companies and their Subsidiaries have with their respective businesses, assets customers and employeessuppliers and (iii) use commercially reasonable efforts not to take any action inconsistent with this Agreement. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, forth on Schedule 5.1 or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II Acquiror in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the neither Company shall notshall, and the each Company shall cause its Subsidiaries not to, during the Interim Periodexcept as specifically contemplated by this Agreement:
(a) change or amend the certificate Certificate of incorporationIncorporation, bylaws Bylaws or other organizational documents of the such Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) except as expressly contemplated otherwise required by this Agreementlaw;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside pay or pay declare any dividend or distribution payable in cashto the stockholders of such Company, stockor set aside any funds for the purpose thereof, property or otherwise with respect to redeem or repurchase any capital stock of the Companies or issue any capital stock or other equity any rights (including options) to acquire any interests in any capital stock of the either Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers common stock issuable upon exercise of outstanding options) or amend any term of any class or series of outstanding securities of either Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or (other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation than with respect to the repayment, prepayment or refinancing vesting of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestsoutstanding options);
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assumematerially and adversely modify, assign, partially terminate or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) renew any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge 3.13 or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000Schedule 3.15, except in the ordinary course of business consistent with past practice practice; provided, however, that notwithstanding the foregoing, neither Company nor any of its Subsidiaries shall (iii) adopt, enter into or materially amend any Company Benefit Plan Contract or modify any business practice to provide for the prepayment prior to the Closing Date by any customer of such Companies or its Subsidiaries of any material amounts for services to be performed or goods to be delivered after the Closing Date other than in respect of power by the hour contracts entered into in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination provided that payments or benefits to any employee or director of under such power by the Company or its Subsidiaries, except hour contracts are made in connection accordance with the promotionterms of such contracts) or (ii) replace, hiring modify, amend, terminate or firing renew the Operating Agreement by and between AlliedSignal Inc. and CFC Aviation Services, L.P., dated June 30, 1994, as amended, without the prior written consent of Acquiror (which consent shall not be unreasonably conditioned, withheld, delayed or denied);
(d) revalue any employee (to the extent permitted of its material Assets, including writing off receivables or reserves, other than as required by clause (iv) of this paragraph) in the ordinary course of business consistent GAAP, applied consistently with past practice, or applicable law;
(ive) hire sell, assign, transfer, convey, lease, mortgage, pledge or otherwise dispose of any employee material Assets or properties except for sales of the Company inventory or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 obsolete Assets in the ordinary course of business consistent with past practice;
(f) (i) except as otherwise required by law, existing Employee Plans or consistent with past practice, take any action with respect to the grant of any severance, termination pay or transaction bonuses (other than (x) pursuant to policies or agreements of such Company or any of its Subsidiaries in effect on the date of this Agreement or (y) transaction bonuses to senior executives of the Companies, the aggregate amount of which shall not exceed $5,000,000, which bonuses, if any, will be paid at the Closing as a Holder Allocable Expense) which will become due and payable on or after the Closing Date and none of which shall fail to maintain its existence, be deductible by reason of Section 280G of the Code; (ii) enter into a new make any material line change in the key management structure of business (such Company or any of its Subsidiaries, including, without limitation, the hiring of additional officers or the termination of existing officers, other than in the electricity transmission and distribution and wind and solar manufacturing businesses), ordinary course of business; (iii) adopt, enter into or materially amend any Employee Plan or increase the compensation or benefits payable or to become payable to its directors or executive officers, in each case except in the ordinary course of business; or (iv) increase the compensation or benefits payable or to become payable to its other employees or its consultants (in each case, except for increases in the ordinary course of business substantially in accordance with past practices and methodologies);
(g) affect or permit a “plant closing” or “mass layoff” as defined by the WARN Act without fully complying with the WARN Act;
(h) acquire by merger or consolidation with, or merge or consolidate with, or purchase any business, or otherwise acquire (whether by merging all or consolidating with or purchasing any equity interest in or a substantial portion substantially all of the assets of) any business or assets, of any corporation, partnership, association, joint venture or other business organization or division thereof that would (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (ivi) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the be material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 Combined Companies (other than in the ordinary course of business), except for Permitted Acquisitions, or (viii) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization constitute part of the Company or any of its Subsidiaries FBO Business (other than aircraft, the Mergeracquisition of which is financed by means of Aircraft Financing Indebtedness);
(gi) fail to make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects accordance with the applicable Company’s annual capital expenditure budget for the periods following a copy of which has been provided to Acquiror prior to the date hereof;
(hj) make any loans, material loans or material advances or capital contributions to, or investments in, to any other Person, other than, in relation except for advances to the Company’s Subsidiaries, employees or officers of such Company or its Subsidiaries for expenses incurred in the ordinary course of business consistent with past practice or between the Company and its Subsidiariespractice;
(ik) amend in a manner materially detrimental subject to the Company or any of its SubsidiariesSection 5.6 hereof, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors use commercially reasonable efforts to collect accounts receivable and pay accounts payable other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, than in the ordinary course of business, business consistent with past practice;
(l) enter into any Related Party Transaction;
(m) change any accounting or as required by applicable Law, financial reporting methods of the Companies or any of their respective Subsidiaries or make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Returnelection, enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement with or closing agreement, in each case involving a Governmental Authority with respect to material amount of Taxes, settle or compromise any claim claim, notice, audit report or assessment in respect of a material amount of Taxes, or consent to any extension or waiver of the statutory limitation period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make fail to use commercially reasonable efforts to maintain or renew any change in financial accounting methods, principles or practices materially affecting License set forth on Schedule 3.19 (except to the reported consolidated assets, liabilities or results of operations extent such License is no longer material to the operation of the Company business of either of the Companies or any of its their respective Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP);
(o) fail do any other act which would reasonably be expected to maintain, cancel cause any condition set forth in Section 9.1 or materially change coverage under any insurance policy in form and amount equivalent in all material respects Section 9.2 not to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;be satisfied; or
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize enter into any agreement, or commit or agree otherwise become obligated, to do any action prohibited under this Section 8.015.1.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Standard Aero Holdings Inc.)
Conduct of Business. From Except as contemplated by this Agreement, as required by Applicable Law or as set forth in Section 6.1 of the Disclosure Schedule, during the period from the date of this Agreement until hereof to the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Article VIII, the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), will use commercially reasonable efforts to (i) conduct and operate its business and operations in all material respects in the ordinary course of business consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness)Agreement, as required by applicable Applicable Law or pursuant to any COVID-19 Measures applicable as set forth in Section 6.1 of the Disclosure Schedule, during the period from the date of this Agreement to the Company earlier of the Closing Date and its Subsidiaries or as consented to by RMG II termination of this Agreement in writing accordance with Article VIII, without the prior written consent of Buyer (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denied), delayed) the Company shall will not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change create, incur, assume or amend the certificate of incorporationguarantee any indebtedness for borrowed money (including, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Companywithout limitation, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchasecapital leases), redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, than in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of businesspractice;
(eb) except as otherwise required by Law issue, sell or existing Company Benefit Plansdeliver, policies redeem or Contracts purchase any of the Company its equity securities, or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into any options, warrants, rights, agreements or materially amend any Company Benefit Plan other than in the ordinary course of business commitments with respect to annual renewalsthe issuance of its securities, or amend any terms of any such equity securities or agreements;
(iiic) grant increase the rate of compensation or provide benefits of, or pay or agree to pay any material bonusbenefit to (including, but not limited to, severance or termination payments pay), present or benefits to any employee former managers, directors, officers or director of the Company or its Subsidiariesemployees, except as may be required by any existing Plan, agreement or arrangement disclosed to Buyer in connection the Disclosure Schedule or by the bonus plan for fiscal year ending December 31, 2015 which may be adopted prior to the Closing Date, or to employees who are not officers in accordance with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the Company’s ordinary course of business consistent with past practice;
(d) enter into, adopt, terminate or materially amend any Plan, employment or severance agreement or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Plan if it were in existence as of the date of this Agreement, except as required by Applicable Law;
(e) sell, lease, transfer or otherwise dispose of capital assets, whether real, personal or mixed, which have an aggregate book value in excess of $500,000 or mortgage or encumber any such properties or assets, whether real or personal;
(f) (i) fail acquire or agree to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with with, or by purchasing any equity interest in the stock or a substantial portion of the assets of) , or by any other manner, any business or any corporation, partnership, association, joint venture association or other business organization or division thereof thereof;
(g) enter into, modify, amend or terminate any Real Property lease or any other than Material Contract (except modifications or amendments in the ordinary course connection with renewals of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests leases or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain Material Contracts or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make waive or release any loansrights of material value or cancel, advances compromise, release or capital contributions to, assign any material indebtedness owed to it or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiariesmaterial claims held by it;
(i) amend in cancel or terminate any insurance policy naming it as a manner materially detrimental to the Company beneficiary or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relationsloss payable payee without obtaining comparable substitute insurance coverage;
(j) excepteffectuate a “plant closing” or “mass layoff” (as those terms are defined under the WARN Act) affecting in whole or in part any site of employment, in relation to facility, operating unit or employees of the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any amend its certificate of formation, limited liability company agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of businessother similar organizational documents;
(l) waivechange any of its material accounting principles, release, compromise, settle methods or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;practices; or
(m) (i) incuragree, guarantee or otherwise become liable for (whether directly, contingently in writing or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01of the foregoing.
Appears in 1 contract
Conduct of Business. From the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except Except as expressly contemplated by this Agreement, as required by applicable Law Agreement or pursuant to any COVID-19 Measures applicable to with the Company and its Subsidiaries or as consented to by RMG II in writing prior written consent of Novamex (which consent shall not be unreasonably conditioned, withheld, delayed withheld or denied), use commercially reasonable efforts to (idelayed) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on period from the date of this AgreementAgreement to the Closing Date, (i) grant any material increase in compensationRio Bravo U.S. shall, benefits or severance to any key employee or manager and shall cause each of the Company or its Subsidiaries with annual base compensation of more than $150,000to, except conduct its operations only in the ordinary course of business consistent with past practice and shall use all reasonable efforts, and shall cause each of its Subsidiaries to use all reasonable efforts, to preserve intact its present business organization, keep available the services of its present officers and employees and preserve its material relationships with licensors, licensees, franchisors, franchisees, customers, suppliers, employees and any others having business dealings with it. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, or as disclosed in Section 6.1 of the Rio Bravo U.S. Disclosure Schedule, Rio Bravo U.S. shall not, and shall not permit any of its Subsidiaries to, prior to the Closing Date, without the prior written consent of Novamex (which consent shall not be unreasonably withheld or delayed):
(a) adopt any amendment to its certificate of formation or by-laws or comparable organizational documents;
(b) except for issuances of capital stock of Rio Bravo U.S.'s Subsidiaries to Rio Bravo U.S. or a wholly owned Subsidiary of Rio Bravo U.S., issue, reissue, sell, deliver or pledge or authorize or propose the issuance, reissuance, sale, delivery or pledge of additional shares of capital stock of any class, or any securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities, or capital stock;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any class or series of its capital stock, except that any wholly owned Subsidiary of Rio Bravo U.S. may pay dividends to Rio Bravo U.S. or any of Rio Bravo U.S.'s other wholly owned Subsidiaries;
(d) adjust, split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities (other than as permitted by Section 6.1(f) hereof);
(i) sell, lease, transfer or dispose of any material assets or rights, (ii) adoptpermit any asset to suffer any Lien thereupon, enter into except for any such Liens existing on the date hereof and for Permitted Liens, or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide acquire any material bonusassets or rights, severance or termination payments or benefits to any employee or director unless in the case of the Company or its Subsidiariesclauses (i), except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause ii) and (iviii) of this paragraphSection 6.1(e), (A) in the ordinary course of business consistent with past practice, practice or (ivB) hire any employee of pursuant to obligations in effect on the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practicedate hereof;
(f) (i) fail to maintain its existenceincur, assume or refinance any Indebtedness, (ii) enter into a new material line assume, guarantee, endorse or otherwise become liable (whether directly, contingently or otherwise) for any Guarantee Obligations of business (any other than the electricity transmission and distribution and wind and solar manufacturing businesses), person or (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Personperson, other thanunless in the case of clauses (i), in relation to the Company’s Subsidiaries(ii) and (iii) of this Section 6.1(f), (A) in the ordinary course of business consistent with past practice or between (B) pursuant to obligations in effect on the Company and its Subsidiariesdate hereof;
(ig) amend in a manner materially detrimental to the Company pay, discharge or satisfy any liability, obligation, or Lien (absolute, accrued, asserted or unasserted, contingent or otherwise) of Rio Bravo U.S. or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business payment, discharge or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of claims, liabilities or obligations of Rio Bravo U.S. or its Subsidiaries (i) reflected or reserved against the Balance Sheet or (ii) incurred in the ordinary course of business since the date of the Balance Sheet;
(h) change any of the accounting or tax principles, practices or methods used by Rio Bravo U.S. (except as required by GAAP or applicable law);
(i) make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants (other than normal salary or wage increases in the ordinary course of business and consistent with past practice), enter into or amend any employment, severance, termination or other agreement or employee benefit plan or make any loans to any of its officers, directors, employees, agents or consultants (other than routine advances in the ordinary course of business and consistent with past practice), whether contingent on consummation of the transactions contemplated hereby or otherwise;
(j) pay, agree to pay or make any accrual or arrangement for payment of any pension, retirement allowance or other employee benefit pursuant to any existing plan, agreement or arrangement to any officer, director or employee or pay or agree to pay or make any accrual or arrangement for payment to any employees of Rio Bravo U.S. or any of its Subsidiaries of any amount relating to unused vacation days, except in the ordinary course of business and consistent with past practice or as permitted by this Agreement;
(k) make or authorize any capital expenditures except in the ordinary course consistent with past practice;
(l) settle or compromise any material Tax liability;
(i) enter into, amend or terminate early any material Contract, except in the ordinary course of business consistent with past practice, or (ii) knowingly take any action or fail to take any action that, with or without either notice or lapse of time, would constitute a material default under any material contract;
(n) make any payments, loans, advances or other distributions to, or enter into any transaction, agreement or arrangement with, the Stockholders, their affiliates, associates or family members (other than compensation payable and routine advances in the ordinary course of business and consistent with past practice to Stockholders who are also employees or consultants);
(o) make any change in its accounts payable practices generally;
(p) terminate or amend or fail to perform any of its obligations or permit any material default to exist or cause any material breach under, or enter into (except for renewals in the ordinary course of business consistent with past practice), any material policy of insurance;
(q) dispose of or permit to lapse any Intellectual Property;
(r) modify, amend or enter into any collective bargaining agreement;
(s) file any income Tax Return or pay any income Tax shown to be due thereon or make any material elections with respect to Taxes with respect to such Tax Returns; or
(qt) authorize or commit take, or agree in writing or otherwise to do take, any action prohibited under this Section 8.01of the foregoing actions.
Appears in 1 contract
Conduct of Business. From During the period from the date of this Agreement until the earlier of to the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries toDate, except (i) as expressly otherwise contemplated by this AgreementAgreement or in the Seller's Disclosure Letter, or (ii) as required by applicable Law or pursuant Buyer shall otherwise consent (such consent not to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), VPI agrees that it will, and will cause each of the WEEMEA Companies and their Subsidiaries to use commercially reasonable efforts to endeavors to, (ix) conduct and operate its business the WEEMEA Business in all material respects in the ordinary course consistent with past practice, including to (y) preserve intact the goodwill WEEMEA Business in all material respects, and present business (z) preserve intact, in all material respects, the ordinary and customary relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors suppliers and creditors and others other third parties having material business relationships with it and retain its current officers and other key employees and it. During the period from the date of this Agreement to the Closing Date, except (i) as Buyer shall otherwise consent in advance in writing (such consent not to be unreasonably withheld, conditioned or delayed), (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly otherwise contemplated by this Agreement Agreement, including Section 7.6 or as set forth in the Seller's Disclosure Letter, or (including the amendment of iii) as required by Law or the terms of any existing Contract, VPI covenants and agrees that it shall use its reasonable endeavors to cause the CCPS substantially in the form set out in Exhibit E, the conversion of WEEMEA Companies and their Subsidiaries not to take any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Periodfollowing actions:
(a) change or amend the certificate of incorporationcharter, bylaws or other similar organizational documents of the any WEEMEA Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s their Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation issue or agree to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver issue any additional shares of their capital stock (other than shares to be transferred to any Designated Buyer at the Closing), or issue or agree to issue any other equity interests or securities convertible into or exchangeable for or exercisable for, or options with respect to, or warrants to purchase or rights to subscribe for, shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by WEEMEA Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s their Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain transfer or otherwise dispose of or encumber any shares of the material assets or material Intellectual Property pertaining to the business capital stock of the any WEEMEA Company or any of its Subsidiaries with a value in excess of $1,000,000 their Subsidiaries;
(other than in the ordinary course of business), or (vic) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization recapitalization, bankruptcy, suspension of payments or other reorganization of the Company or any of its Subsidiaries (other than the Merger)under local Law;
(gd) make acquire or dispose of, in any capital expenditures (manner including any business combination, any business or commitment substantially all of the assets of any business or Person which are material to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereofWEEMEA Business taken as a whole;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (iie) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice, enter into, or amend, terminate or waive any right under a Material Contract;
(f) make , incur or authorize any individual capital expenditures or commitment for capital expenditures in excess of $100,000, otherwise than in accordance with capital expenditure plans communicated to the Buyer prior to the date hereof;
(g) except in the ordinary course of the business consistent with past practice, sell or otherwise dispose of, or incur, create or assume any Encumbrance, other than Permitted Encumbrances, with respect to any material assets of the WEEMEA Business;
(h) enter into or modify any material employment, severance, change in control, termination or similar agreements or arrangements with, or grant any material bonuses, salary increases, severance or termination pay to, or otherwise materially increase the compensation or benefits of, any Affected Employee, other than, in each case, in the ordinary course of business and consistent with past practice or as may be required by a binding Contract, or plan in effect on the date of this Agreement or by any applicable Laws;
(i) collect in, defer, discount or otherwise deal with receivables or payables other than in the ordinary course consistent with past practice; or
(qj) authorize offer price reductions or commit discounts or agree allowances on sales of Products, other than on a normal basis in the ordinary course of business. Notwithstanding any provision herein to do the contrary, prior to the Closing, each of the WEEMEA Companies and the Subsidiaries of the WEEMEA Companies will be permitted, to the extent permitted by Law, to declare and pay dividends and distributions to VPI or any action prohibited under this Section 8.01Subsidiary thereof, to submit or procure the submission of any Tax election or Tax Return and to pay any indebtedness, including intercompany debt.
Appears in 1 contract
Samples: Acquisition Agreement (Valeant Pharmaceuticals International)
Conduct of Business. From Except as may be consented to in writing by Buyer or except as specifically contemplated by this Agreement, the Company hereby covenants to Buyer and the Merger Subs that, during the period commencing on the date of this Agreement until and ending on the earlier to occur of (a) the Closing Date and or (b) the termination of this Agreement in accordance with its terms Section 10.1 below (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to conduct the business of the Company and its Subsidiaries or as consented to by RMG II only in writing (which consent the ordinary course of business consistent with past practices and shall not be unreasonably conditioned, withheld, delayed or denied), use commercially its reasonable best efforts to (i) conduct preserve intact the Company’s and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and Subsidiaries present business organization, (ii) keep available the services of its current officers and employees, (iii) preserve its present relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships dealings with it and retain its current officers (iv) take no action which would reasonably be expected to materially and other key employees and (ii) comply in all material respects with all Laws applicable adversely affect the ability of the Company to it and its Subsidiaries and their respective businesses, assets and employeesconsummate the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, except as expressly contemplated by provided in this Agreement (including or as set forth on Schedule 7.1, during the amendment Interim Period, the Company shall not do, cause or permit any of the terms following (and shall cause its Subsidiaries to not do, cause or permit any of the CCPS substantially following):
(a) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property) with respect to any Equity Security, or repurchase, redeem or otherwise reacquire any Equity Securities; or split, combine, reclassify, redeem or repurchase any Equity Securities;
(b) sell, issue or authorize the form set out in Exhibit E, the conversion issuance of any CCPS Equity Securities or other securities of the Company (except for Common Stock issued upon the exercise of outstanding Common Options and Common Warrants in accordance connection with their termsthe Merger);
(c) cause or permit any amendments to the Company’s or any of its Subsidiaries’ Organizational Documents;
(d) amend or waive any of its rights under, or entering into such documents and instruments and taking such actions as may be reasonably required by permit the acceleration or vesting of non-employees of the Company or its Subsidiaries under, (i) any provision of any Company Stock Plan, or (ii) any provision of any Contract evidencing any outstanding Common Option or any outstanding Common Warrant;
(e) (i) increase or modify the compensation or benefits payable or to release or otherwise discharge any guarantee or other credit support granted become payable by the Company or any Subsidiary in respect of its Subsidiaries to any Indebtedness incurred by the SS Group of its or to comply their current or former directors, employees, contractors or consultants, (ii) increase or modify any bonus, severance, termination, pension, insurance or other employee benefit plan, payment or arrangement made to, for or with the obligations any current or former directors, employees, contractors or consultants of the Company, Company or any of its Subsidiaries or (iii) enter into or modify any employment, severance or termination agreement, whether written or oral;
(f) sell, assign, transfer, convey, lease, license or otherwise dispose of or encumber any property or assets having a value individually exceeding $10,000 or an aggregate value exceeding $50,000, other than sales of inventory and obsolete assets in the SS Group in respect ordinary course of business consistent with its past practice;
(g) incur any Indebtedness or guarantee any such Indebtedness), as required by applicable Law amend the terms of any Indebtedness, forgive any Indebtedness or pursuant to issue or sell any COVID-19 Measures applicable to the Company and its Subsidiaries debt securities or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:guarantee any debt securities of others;
(ah) change mortgage, pledge or amend the certificate of incorporationsubject to Liens, bylaws other than Permitted Liens, any properties or other organizational documents assets of the Company or any of its Subsidiaries except pursuant to existing Contracts;
(i) make any change (or file any such change) in the case any method of Tax accounting, make, change or rescind any material Tax election, settle or compromise any material Tax liability, file any amended Tax Return, enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax, surrender any right to claim a Tax refund or consent to any extension or waiver of the Company, for statute of limitations period applicable to any such change Tax claim or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreementassessment;
(bj) except make any capital expenditure or commit to make any capital expenditure which in any one case exceeds $10,000 or capital expenditures which in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (aggregate exceed $50,000 other than transfers of Company Stock held by former employees of the Company such expenditures undertaken in order to replace or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their repair capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business goods of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(ek) except in the ordinary course of business, enter into any Contract that would be required to be listed as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, a Material Contract if such Contract were in effect on the date hereof or, except for amendments, terminations or non-renewals in the ordinary course of this Agreementbusiness and consistent with past practices, materially amend, terminate or fail to use its commercially reasonable efforts to renew any Material Contract;
(l) make any material change in any of the Company’s accounting methods, principles or practices, except for changes made in compliance with GAAP;
(m) commence or settle any Action;
(n) make any loans or advances, other than routine advances to employees consistent with past practice or forgive or discharge in whole or in part any outstanding loans or advances;
(i) grant any material increase in compensation, benefits transfer or severance license to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more Person any rights to any Intellectual Property other than $150,000, except in the ordinary course of business consistent with past practice and on a non-exclusive basis, (ii) adoptgrant, enter into or materially extend, amend any Company Benefit Plan other than (except as required in the ordinary course diligent prosecution of business with respect the material Intellectual Property), waive or modify any rights in or to annual renewalsany Intellectual Property, (iii) grant fail to diligently prosecute and maintain any applications or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, registrations for Registered IP or (iv) hire fail to exercise a right of renewal or extension under any employee of the Company Intellectual Property;
(p) enter into a material transaction or any of its Subsidiaries, or take any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in material action outside the ordinary course of business consistent with past practice;
(fq) (i) fail acquire or agree to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with with, or by purchasing any equity interest in or a substantial portion of the assets of) , or by any other manner, any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger)Person;
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(kr) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete participate in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Actiontransaction, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incurMerger, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practiceRelated Party; or
(qs) authorize or commit take or agree to do take, whether in writing or otherwise, any of the foregoing actions, or any action prohibited under which could reasonably be expected to make any of the Company’s representations or warranties contained in this Section 8.01Agreement untrue or incorrect or prevent the Company from performing or cause the Company not to perform one or more covenants required hereunder to be performed by the Company, in such a manner that the conditions to Closing set forth in Sections 9.2(a) and 9.2(b) would not be satisfied.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Tabula Rasa HealthCare, Inc.)
Conduct of Business. From Except for (i) reductions in marketing efforts, the value of reward points and the number of employees (provided, however, that Seller may not terminate any Transferred Employees except for those Transferred Employees that are terminated by the Seller for cause or who leave voluntarily), (ii) as expressly and specifically contemplated by this Agreement, (iii) as set forth on Schedule 5.1, (iv) the Sillerman Liens, or (v) as otherwise consented to in writing by the Buyer (which written consent may not be unreasonably withheld, conditioned or delayed), from the date hereof through the Closing, the Seller shall use Reasonable Efforts to, and shall cause its Subsidiaries to use Reasonable Efforts to, conduct the Business in all material respects in the Ordinary Course of this Agreement until Business, in substantially the earlier of same manner as heretofore conducted and use its Reasonable Efforts to preserve intact the Closing Date Purchased Assets and the termination of this Agreement in accordance Business and Seller’s and its Subsidiaries’ relationship with its terms (customers, suppliers, creditors and employees. Without limiting the “Interim Period”)foregoing, during the Company period from the date hereof through the Closing, Seller shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable with respect to the Company Purchased Assets, the Assumed Liabilities or the Business:
(a) preserve and its Subsidiaries maintain all Licenses and Permits required for the conduct of the Business as currently conducted or as consented the ownership and use of the Purchased Assets;
(b) pay the debts, Taxes and other obligations of the Business when due;
(c) continue to by RMG II collect Accounts Receivable in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course a manner consistent with past practice, including without accelerating or discounting such Accounts Receivable;
(d) maintain the properties and assets included in the Purchased Assets in the same condition as they were on the date of this Agreement, subject to preserve reasonable wear and tear;
(e) continue in full force and effect without modification all Insurance Policies, except as required by applicable Law;
(f) defend and protect the goodwill properties and present business relationships assets included in the Purchased Assets from infringement or usurpation;
(contractual or otherwiseg) perform all of its obligations under all Assigned Contracts;
(h) maintain the books and records of the Business in accordance with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and past practice;
(iii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business Business or the ownership and use of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;Purchased Assets; and
(j) except, in relation not take and use Reasonable Efforts not to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change permit any material Tax election or adopt or change action that would cause any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable changes, events or conditions described in Section 3.8 to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01occur.
Appears in 1 contract
Conduct of Business. From The Company hereby covenants and agrees as follows: Subject to the date terms and conditions of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Agreement, the Company shallagrees to use all reasonable efforts to take, or cause to be taken, all actions, and shall to do, or cause its Subsidiaries toto be done, except as expressly contemplated all things necessary, proper or advisable to consummate and make effective the transactions provided for by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to . Each of the Company and FKE hereby agrees, while this Agreement is in effect, and except as contemplated hereby, not to intentionally and knowingly take any action with the intention and knowledge that such action would make any of its Subsidiaries representations or as consented to by RMG II warranties contained herein untrue or incorrect in writing (which consent shall not be unreasonably conditioned, withheld, delayed any material respect or denied), use commercially reasonable efforts to (i) conduct and operate have the effect of preventing or disabling it from performing its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeesobligations under this Agreement. Without limiting the generality of the foregoing, and except as expressly contemplated by this Agreement (including Agreement, prior to the amendment Final Closing Date, neither the Company nor FKE will, without the prior written consent of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim PeriodPurchaser:
(a) change Propose or amend adopt any amendments to the certificate Articles of incorporationAssociation of FKE (except that FKE shall, bylaws or other organizational documents prior to the first Closing, make that certain Deed of Conversion and Amendment to the Company or any Articles of Association for Fox Kids Europe N.V, pursuant to which FKE will convert from a BESLOTEN VENNOOTSCHAP to a NAAMLOZE VENNOOTSCHAP, whereupon its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which name will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreementbe Fox Kids Europe N.V.);
(b) except in Issue, sell or repurchase, or authorize or propose the ordinary course issuance, sale or repurchase of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any shares of capital stock or other equity interests in any of the Company or its SubsidiariesFKE, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stocksuch shares, or issueany rights, sell, transfer, pledge, encumber warrants or grant any right, option options to acquire such shares or other commitment for convertible securities, other than the initial issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation by FKE to the repayment, prepayment or refinancing Company and the other incorporators of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;FKE; or
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transferSell, lease, pledge or otherwise encumberdispose of, abandon, cancel or convey or transfer or agree to sell, lease, dispose of any assetsof, properties convey or business transfer substantially all of the Company or any assets of its Subsidiaries, including Real Propertythe Company, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, sales in the ordinary course of business, or as required by applicable Lawand except for the Fox Kids Europe Transactions, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment which shall have occurred prior to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01."
Appears in 1 contract
Conduct of Business. From the date of this Agreement Except as otherwise contemplated hereby, and as may be otherwise required by law or any Governmental Authority, Seller agrees that, until the earlier of the Closing Date and the termination of this Agreement in accordance with Closing, it shall conduct, or cause to be conducted, its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable operations relating to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business Transferred Assets in the ordinary course and consistent with past practicepractices, including to policies and procedures. Without limiting the foregoing, until the Closing, Seller shall (i) preserve intact the goodwill Transferred Assets and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business beneficial relationships with it Customers and retain its current officers vendors in connection with the Transferred Assets, following in all material respects the same practices and other key employees and standards as in effect on the date hereof; (ii) comply maintain, service and operate the Transferred Assets in substantially the same manner as previously maintained, serviced and operated and in accordance in all material respects with all Laws Sellers’ past practices, policies and procedures relating to the Transferred Assets; (iii) maintain, service and operate the Transferred Assets to be acquired hereunder in compliance with applicable laws, rules and regulations; (iv) not make any material change to it Seller’s policies and its Subsidiaries and their respective businesses, assets and employees. Without limiting procedures relating to the generality of Transferred Assets or take any other action that would have a Material Adverse Effect on the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially Transferred Assets in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents aggregate; and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to (v) comply with the obligations terms and conditions of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable Transferred Contracts. Notwithstanding anything herein to the Company and contrary, Seller may continue with its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise current program with respect to upgrading the ATMs to bring them into compliance with any capital stock or other equity interests in any of upcoming regulatory requirements, specifically including the Company or its SubsidiariesMasterCard, (ii) effect any recapitalizationInternational TRIPLE DES requirement; provided, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of Seller shall ensure that the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who upgrade program is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend implemented in a manner materially detrimental that complies with the Transferred ATM Management Agreements. In addition, Seller agrees that, at Purchaser’s request, it will take all necessary action to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to not renew or maintain any material authorization terminate the Concord Agreement by June 15, 2004, it being understood that Purchaser shall still assume all Liabilities under such agreement and resulting from a Governmental Authority such cancellation, non-renewal or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01termination.
Appears in 1 contract
Conduct of Business. From the date of this Agreement until the earlier of the Closing Date and or the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated required by this Agreement, as required by applicable Law Law, as contemplated by the Pre-Closing Restructuring Plan or pursuant to any COVID-19 Measures applicable to otherwise in connection with the Pre-Closing Restructuring, set forth on Section 7.01 of the Company and its Subsidiaries Disclosure Letter or as consented to by RMG II in writing by Acquiror (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially its reasonable efforts to (i) conduct and operate its business in the ordinary course of business consistent with past practicepractice (including, including for the avoidance of doubt, recent past practice in light of COVID-19 Measures; provided that, any action taken, or omitted to preserve be taken, that relates to, or arises out of, COVID-19 Measures shall be deemed to be in the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeesordinary course of business). Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness)Law, as required by applicable Law this Agreement, as contemplated by the Pre-Closing Restructuring Plan or pursuant to any COVID-19 Measures applicable to otherwise in connection with the Pre-Closing Restructuring, as set forth on Section 7.01 of the Company and its Subsidiaries Disclosure Letter or as consented to by RMG II in writing by Acquiror (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate Governing Documents of incorporationthe Company or any of its Subsidiaries;
(b) make, bylaws declare, set aside, establish a record date for or pay any dividend or distribution, other organizational documents than any dividends or distributions from any wholly owned Subsidiary of the Company to the Company or any other wholly owned Subsidiaries of the Company;
(c) (i) issue, deliver, sell, transfer, pledge, dispose of or place any Lien (other than a Permitted Lien) on any shares of capital stock or any other equity or voting securities of the Company or any of its Subsidiaries except or (iii) in the case issue, grant or agree to provide any options, warrants or other rights to purchase or obtain any shares of capital stock or any other equity or equity-based or voting securities of the Company, except, in any case, for the issuance of shares of capital stock of the Company in connection with the exercise of Company Options that are outstanding as of the date hereof and that are either vested as of the date hereof or are required to vest following the date hereof pursuant to their terms;
(d) sell, assign, transfer, convey, lease, license, abandon, allow to lapse or expire, subject to or grant any Lien (other than Permitted Liens) on, or otherwise dispose of, any material assets or properties of the Company and its Subsidiaries, taken as a whole, other than (i) the sale of goods and services to customers, or the sale or other disposition of assets or equipment deemed by the Company in its good faith reasonable business judgment to be obsolete or no longer be material to the business of the Company and its Subsidiaries taken as a whole, in each such change case, in the ordinary course of business and (ii) transactions between the Company and any wholly owned Subsidiary of the Company or amendment between wholly owned Subsidiaries of the Company;
(e) (i) cancel or compromise any claim or Indebtedness owed to the Company or any of its Subsidiaries or (ii) settle any pending or threatened Action (A) if such settlement would require payment by the Company and/or its Subsidiaries in an amount greater than $1,000,000, (B) to the extent such settlement includes an agreement by the Company and/or its Subsidiaries to accept or concede injunctive relief or (C) to the extent such settlement is adverse to the Company and/or its Subsidiaries and involves an Action brought by a Governmental Authority or alleged criminal wrongdoing;
(f) except as required by applicable Law or the terms of any existing Company Benefit Plans as in effect on the date hereof and set forth on Section 5.13(a) of the Company Disclosure Letter, (i) materially increase the compensation or benefits of any Company Employee except for increases in salary or hourly wage rates made in the ordinary course of business to Company Employees with annual base salary less than $200,000 or for ordinary course annual salary increases for 2021 for all employees that do not exceed, in the aggregate, 4% of the aggregate salary paid by the Company and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the TransactionsSubsidiaries in calendar year 2020, (ii) make any grant or promise of any severance, retention, incentive or termination payment to any Person, except severance or termination payments in connection with the case termination of the Company’s Subsidiaries, for any such change or amendment made employee in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise and consistent with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalizationpast practice, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of make any change in the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business key management structure of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions the hiring of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries additional officers or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
termination (e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (ivfor “cause”) of this paragraph) in the ordinary course of business consistent with past practiceexisting officers, or (iv) hire any employee of the Company or any of its Subsidiaries, Subsidiaries or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, Subsidiaries other than any employee with an annual base compensation salary of less than $1,000,000 200,000 in the ordinary course of business consistent with past practicethat would not otherwise violate subsection (iii) or (v) except in the ordinary course of business and as would not otherwise violate subsections (i)-(iv), establish, adopt, enter into, amend in any material respect or terminate any Company Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Benefit Plan if it were in existence as of the date of this Agreement;
(fg) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase directly or otherwise indirectly acquire (whether by merging or consolidating with with, or by purchasing any equity interest in a substantially all or a substantial material portion of the assets of) , or by purchasing all of or a substantial equity interest in, any business or any corporation, partnership, associationlimited liability company, joint venture venture, association or other business organization entity or Person or division thereof thereof;
(h) make any loans or advance any money or other than property to any Person, except for (A) advances in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests employees or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business officers of the Company or any of its Subsidiaries with a value for expenses not to exceed $50,000 individually or $500,000 in excess the aggregate, (B) prepayments and deposits paid to suppliers of $1,000,000 the Company or any of its Subsidiaries in the ordinary course of business or (other than C) trade credit extended to customers of the Company or any of its Subsidiaries in the ordinary course of business;
(i) redeem, purchase or otherwise acquire, any shares of capital stock (or other equity interests) of the Company or any of its Subsidiaries or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of capital stock (or other equity interests) of the Company or any of its Subsidiaries, except for (i) acquisitions of shares of capital stock of the Company in connection with the exercise of Company Options solely as the result of net settlement for taxes and/or exercise price to the extent the Company is so required by the terms of the Company Option, (ii) the acquisition by the Company or any of its Subsidiaries of any shares of capital stock, membership interests or other equity interests (other than the Company Options pursuant to subsection (i)) of the Company or its Subsidiaries in connection with the forfeiture or cancellation of such interests, and (iii) transactions between the Company and any wholly owned Subsidiary of the Company or between wholly owned Subsidiaries of the Company;
(vij) adjust, split, combine, subdivide, recapitalize, reclassify or otherwise effect any change in respect of any shares of capital stock or other equity interests or securities of the Company;
(k) make any change in its customary accounting principles or methods of accounting materially affecting the reported consolidated assets, liabilities or results of operations of the Company and its Subsidiaries, other than as may be required by applicable Law, GAAP or regulatory guidelines;
(l) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or its Subsidiaries;
(m) make, change or revoke any material Tax election, adopt or change (or request any Governmental Authority to change) any material accounting method or accounting period with respect to Taxes, file any amended material Tax Return, settle or compromise any material Tax liability or claim for a refund of its Subsidiaries a material amount of Taxes, enter into any closing agreement or other binding written agreement with respect to any material Tax, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment (other than the Merger);
(g) make pursuant to an extension of time to file any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 Tax Return obtained in the aggregate) ordinary course of business), file any Tax Return other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is one prepared in a manner consistent in all material respects with past practice, or enter into any Tax sharing or Tax indemnification agreement or similar agreement (excluding commercial Contracts not primarily relating to Taxes), in each case, to the Company’s annual capital expenditure budget for extent such action could reasonably be expected to have an adverse impact on Acquiror, the periods following the date hereofCompany or any of its Subsidiaries;
(hn) make issue any loansdebt securities, advances incur indebtedness for borrowed money in excess of $1,000,000 other than in the ordinary course of business consistent with past practice, or capital contributions assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person for Indebtedness;
(o) terminate without replacement or amend in a manner materially detrimental to the Company and its Subsidiaries, taken as a whole, material insurance policies covering the Company and its Subsidiaries and their respective properties, assets and businesses;
(p) enter into any agreement that materially restricts the ability of the Company or its Subsidiaries to engage or compete in any line of business or enter into a new line of business, except where such restriction does not, and would not be reasonably likely to, individually or investments inin the aggregate, materially and adversely affect, or materially disrupt, the ordinary course operation of the businesses of the Company and its Subsidiaries, taken as a whole;
(q) enter into, assume, assign, partially or completely amend any other Personmaterial term of or terminate (excluding any expiration in accordance with its terms) any collective bargaining or similar agreement, other thanthan as required by applicable Law;
(r) enter into, modify in relation any material respect, waive any material rights under or terminate any Contract that is (or would be if entered into prior to the Company’s Subsidiariesdate of this Agreement) a Material Contract of the type described in clauses (i), (iii), (iv), (vi), (viii) or (x) of Section 5.12(a), other than in the ordinary course of business consistent with past practice or between the Company and its Subsidiariesas required by Law;
(is) amend acquire any ownership interest in a manner materially detrimental any real property;
(t) fail to maintain, dedicate to the public, allow to lapse, or abandon, including by failure to pay the required fees in any jurisdiction, any material Owned Intellectual Property, excluding any failures, dedications, or allowances made by the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, Subsidiaries in the ordinary course of business, or as required by applicable Law, make for any Owned Intellectual Property that is not used or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or useful in the aggregate, reasonably be expected to have the effect business of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after Subsidiaries or is not in the ClosingCompany’s reasonable business judgment, commercially practical to maintain;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(nu) make any change in financial accounting methods, principles any material respect to the policies or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of regarding the payment of accounts payable and payable, the management collection of inventory) accounts receivable, including accelerating the receipt of amounts due with respect to any accounts receivables, or lengthening the period for payment of accounts payable, except for changes in the ordinary course of business consistent with past practice; or
(qv) authorize enter into any agreement, or commit or agree otherwise become obligated, to do any action prohibited under this Section 8.017.01.
Appears in 1 contract
Samples: Merger Agreement (Hudson Executive Investment Corp.)
Conduct of Business. From the date of this Agreement until the earlier of hereof through the Closing Date and the termination of ------------------- Date, except as may otherwise be expressly provided for in this Agreement in accordance with its terms (the “Interim Period”)Agreement, the Company Seller shall, and Parent shall cause its Subsidiaries Seller to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to carry on the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business Business only in the ordinary and regular course consistent with past practice, including to preserve the goodwill practices and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects compliance with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeeslaws. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall notSeller shall, and the Company Parent shall cause its Subsidiaries not Seller to, during the Interim Period:
(a) change or amend the certificate preserve substantially intact Seller's relationships with suppliers, customers, employees, creditors and others having business dealings with Seller; (b) maintain in full force and effect its existing policies of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except insurance; and (ic) in the case of the Company, for any such change or amendment made continue performance in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or the Contracts and other obligations to consummate the Transactions, (ii) in the case be included as part of the Company’s SubsidiariesPurchased Assets or Assumed Liabilities. Without the prior written consent of Buyer, for any such change or amendment made in the ordinary course of business or (iii) Parent and Seller further covenant to Buyer that, except as expressly contemplated by may otherwise be required under this Agreement;, from the date hereof to the Closing, Seller will not, and Parent shall cause Seller to not:
(ba) except in incur or permit the ordinary course incurrence of business in relation to the Company’s Subsidiaries (i) makeany new debt, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness trade payables incurred by the Company or its Subsidiaries in the ordinary course of business;
(eb) except purchase any real property or real property interest to be included as otherwise required by Law or existing Company Benefit Plans, policies or Contracts part of the Company or its Subsidiaries, in effect Purchased Assets;
(c) permit to be incurred any Liens on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company Purchased Assets;
(d) amend or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into terminate any Contract or materially amend any Company Benefit Plan License other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(fe) (i) fail except for normal merit, or cost-of-living, or promotional increases to maintain its existenceemployees in accordance with past practices at Seller, (ii) enter into a new material line increase the rate of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses)compensation for, (iii) purchase or otherwise acquire (whether by merging pay or consolidating with commit to pay any bonus or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporationadditional compensation to, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets employees of Seller or material Intellectual Property pertaining to otherwise enter into or alter any employment, consulting or managerial services agreement affecting Seller or the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 Business;
(other than in the ordinary course of business), or (vif) adopt or enter into a plan amend any Plan affecting employees of complete or partial liquidationSeller, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Mergeramendments that are required by law (provided that Seller shall notify Buyer regarding any such amendments as soon as reasonably practicable);
(g) make any capital expenditures (or commitment commit to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make sell, transfer or otherwise dispose of any loansPurchased Assets, advances or capital contributions to, or investments in, any except sales of inventory and other Person, other than, in relation to the Company’s Subsidiaries, property in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend pursuant to Contracts in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of on the date hereof;
(pi) fail in a material manner to manage its working capital (including accelerate or delay the timing sale of the products of, or provision of services by, Seller or the collection of accounts receivable and of the payment of accounts payable and the management of inventory) receivable, except in the ordinary course of business consistent with past practice;
(j) enter into outside of the ordinary course of business any transaction, contract or commitment or incur any obligation or liability which would constitute an Assumed Liability;
(k) waive any right of substantial value, cancel any debt (other than intercompany debt) owed to or on behalf of Seller or claim against any other Entity, except in the ordinary course of business, or voluntarily suffer any extraordinary loss;
(l) sell, assign, transfer, license, abandon or convey any of the Intellectual Property;
(m) make any change in accounting methods or principles or cost allocation procedures that affect the financial statements of Seller;
(n) enter into any Contract other than in the ordinary course of business consistent with past practice;
(o) make any investment, either by purchase of stock or securities, contributions to capital, property transfers, or purchases of any property or assets, except the purchase of inventory and other property in the ordinary course of business consistent with past practice or pursuant to Contracts or agreements in effect on the date hereof;
(p) take any action that would result in any representation or warranty of the Seller contained in this Agreement not to be true and correct on the date of this Agreement or at any future date on or prior to the Closing Date; or
(q) authorize agree or commit or agree to do take any action prohibited under described in this Section 8.017.3. Notwithstanding the foregoing, nothing in this Section 7.3 shall prohibit Seller and Parent from taking any action, including any action enumerated in this Section 7.3, without the consent of the Buyer to the extent such action relates to a Retained Asset.
Appears in 1 contract
Conduct of Business. From and after the date of this Agreement and until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries toDate, except as expressly set forth on Schedule 5.2 or as otherwise contemplated by this AgreementAgreement or the Schedules hereto or as Buyer shall otherwise consent to in writing, as required by applicable Law or pursuant to any COVID-19 Measures applicable Seller, with respect to the Company and its Subsidiaries or as consented to by RMG II in writing Purchased Assets:
(which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (ia) conduct and operate its business will carry on the Business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) makewill not permit, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adoptor as may be required by Law or a Governmental Body, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company all or any of its Subsidiariesthe Purchased Assets (real or personal, tangible or intangible) to be sold, licensed or subjected to any other individual who is providing Encumbrance;
(c) will not acquire, sell, lease, license, transfer or will provide services to the Company dispose of any asset that would otherwise be a Purchased Asset or adversely affect any of its SubsidiariesPurchased Asset, other than any employee with annual base compensation of less than $1,000,000 except in the ordinary course of business consistent with past practice;
(fd) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise will not terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present extend or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or materially modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its SubsidiariesMaterial Contract, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or;
(qe) authorize or commit or agree to will not do any other act which would cause any representation or warranty of Seller in this Agreement or the Collateral Agreements to be or become untrue in any material respect or intentionally omit to take any action prohibited necessary to prevent any such representation or warranty from being untrue in any material respect as of any time prior to the Closing;
(f) shall use all reasonable efforts to preserve intact in all material respects Seller's present business organization and reputation and to preserve its relationships with employees, creditors, customers and suppliers and others having significant business relationships with Seller;
(g) will not take any action or enter into any agreement or arrangement that would have the effect, or would be reasonably likely to have the effect, of causing (i) a breach of this Agreement or any Collateral Agreement or any covenant contained herein or therein, or (ii) the failure or inability to satisfy any conditions set forth in this Agreement or the Collateral Agreements;
(h) will not (i) dissolve or liquidate, or adopt any plan of dissolution or liquidation, (ii) consent to or commence any suit, proceeding, petition or other action or the filing of a petition (A) under this Section 8.01any law relating to bankruptcy, insolvency or reorganization or seeking reorganization, arrangement, adjustment, winding up or other relief with respect to it, or (B) seeking appointment of a receiver, trustee or custodian for it or all or any substantial part of its assets, (iii) allow any assignment for the benefit of creditors, or (iv) permit the admission in writing of its inability to pay its debts generally as they become due;
(i) will not knowingly violate any Law, rule or regulation to which it is subject and which would have a Material Adverse Effect on Seller or the Purchased Assets; and
(j) will not enter into any agreement or commitment with respect to any of the foregoing.
Appears in 1 contract
Conduct of Business. From the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except Except as otherwise expressly contemplated by this AgreementAgreement or with the prior written consent of Buyer, as required by applicable Law or pursuant from the date hereof until the Closing Date, Sellers shall use reasonable best efforts to any COVID-19 Measures applicable preserve intact the Business and the Transferred Assets and maintain its rights, Contracts and Permits, keep available the services of employees and contractors and preserve their relationships with customers, manufacturers, landlords and others having business dealings with Sellers. Without limiting the generality of the foregoing (but subject to the Company and its Subsidiaries or as consented to by RMG II express limitation set forth in writing the immediately preceding sentence), Sellers will, other than with Buyer’s consent (which consent shall not be unreasonably conditioned, withheld, delayed withheld or denieddelayed), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality refrain from doing any of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Periodfollowing:
(a) change dispose of, transfer, assign or amend license, any Transferred Asset, including, but not limited to, the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementAT&T Contract;
(b) except in the ordinary course of business in relation transfer any tangible Transferred Asset to any other location to the Company’s Subsidiaries (i) makeextent that, declareat the Closing, set aside or pay any dividend or distribution payable in cash, stock, property or such Transferred Asset is not at a location that is not otherwise with respect to any capital stock or other equity interests in any part of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestsTransferred Assets;
(c) except as otherwise permitted provided or not restricted by required in this Section 8.01 enter intoAgreement, assumereject, assignterminate, partially or completely amend or modify the terms of any of the Assumed Contracts or assign any of the Assumed Contracts, or reject, terminate, enter into or amend any other material term Contract with respect to the businesses of any Seller that would affect the Transferred Assets, the Assumed Liabilities or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a)the Employees;
(d) sell, transfer, lease, pledge acquire or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation agree to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with with, or by purchasing any equity interest in or a substantial portion of the assets of) , or by any business other manner, in a single transaction or a series of related transactions, any corporation, partnership, association, joint venture or other business organization or division thereof Person;
(other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (ve) sell, transfer, license, assignabandon, fail to maintain let lapse, encumber or otherwise dispose of any Sellers Intellectual Property;
(f) amend or encumber any propose to amend or otherwise change Sellers’ articles of the material assets incorporation, bylaws, certificate of formation, operating agreement or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger)similar governing document;
(g) make cancel, compromise, settle, release or discharge any capital expenditures (Legal Proceeding or commitment to make any capital expenditures) in excess other material claim of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereofSellers;
(h) make enter into any loansagreement or commitment that would subject Sellers to any non-competition, advances non-solicitation or capital contributions toany other material restrictions on Sellers’ ability to conduct its business, or investments in, that limits or restricts the use of the Sellers Intellectual Property or any other Person, other than, Intellectual Property in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice which Sellers have any interest or between the Company and its Subsidiariesright;
(i) amend in a manner materially detrimental to cancel or terminate the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relationsinsurance coverage under Sellers’ insurance policies;
(j) except, in relation to the Company’s Subsidiaries, make any change in the ordinary course operation of businessany Seller’s businesses that would affect the Transferred Assets, the Assumed Liabilities or the Employees, including, but not limited to, the providing of any notice required by the WARN Act or any other applicable Law;
(k) (A) increase the rate or terms of compensation payable or to become payable to any of the officers or employees of Sellers, (B) increase the rate or terms of any (including entering or adopting any new) Employee Plan covering any of the officers or employees of Sellers except as required by applicable LawLaws, make or change (C) pay or agree to pay any material Tax election or adopt or change any material Tax accounting method, file any material amendment retention payment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period officers or employees of limitations applicable to any claim Sellers, whether before or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(kl) enter into take any agreement that restricts action that, if taken after December 31, 2021 and prior to the ability date hereof, would require disclosure pursuant to Section 6.9 or, without limiting the generality of the Company or foregoing, take any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability action outside of the Company or any Ordinary Course of its Subsidiaries Business except as expressly required by the Bankruptcy Court pursuant to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;Voluntary Bankruptcy Cases; or
(m) (i) incurauthorize any of, guarantee or otherwise become liable for (whether directlycommit, contingently agree in writing or otherwise) , to take any material Indebtednessof, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01foregoing actions.
Appears in 1 contract
Samples: Asset Purchase Agreement (Enjoy Technology, Inc./De)
Conduct of Business. From Except as set forth in Section 6.1 of the Seller Disclosure Schedule or otherwise expressly provided for in this Agreement (including any actions necessary to consummate the Reorganization) or required by applicable Law, during the period from the date of this Agreement hereof and continuing until the earlier of the Closing Date and the termination of this Agreement in accordance and the Closing Date, except with its terms the written consent of the Purchaser (the “Interim Period”which shall not be unreasonably withheld or delayed), the Company shallSeller shall (i) maintain, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and to maintain, its Subsidiaries or as consented to by RMG II in writing corporate existence, (which consent shall not be unreasonably conditioned, withheld, delayed or denied), ii) use commercially reasonable efforts to (i) conduct and operate its business carry on the Business in the ordinary course of business in a manner consistent with past practicepractice during the 12 months immediately preceding the date hereof, including (iii) use its commercially reasonable efforts to preserve intact the goodwill and present business relationships (contractual of the Business with material existing or otherwise) with its prospective customers, suppliers, joint venture partners, suppliers and distributors and creditors and others having to keep available the services of the Business Employees, (iv) make commercially reasonable repairs to material business relationships with it and retain its current officers and other key employees Assets necessary to prevent any accelerated degradation or depreciation of such Assets, and (iiv) comply use its commercially reasonable efforts to maintain insurance coverage for the Business substantially equivalent to that maintained on the date hereof. Notwithstanding any other provision of this Agreement, the Seller may, on or prior to the Closing Date, (y) sweep, or cause to be swept, funds to bank accounts of the Seller (other than Business Bank Accounts) from bank accounts maintained solely for the purposes of the Business (“Business Bank Accounts”) or (z) otherwise transfer, or cause to be transferred, to the Seller all cash and cash equivalents generated exclusively in all material respects connection with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeesthe Business. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement for (including the amendment i) matters set forth in Section 6.1 of the terms Seller Disclosure Schedule, (ii) actions taken to effect the Reorganization (subject to Section 6.5), or (iii) as otherwise expressly provided for in this Agreement, without the written consent of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company Purchaser (not to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed withheld or denieddelayed), the Company Seller shall not, not with respect to the Business and shall not permit the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change sell any property or amend the certificate of incorporationassets having a value individually exceeding $100,000, bylaws or other organizational documents of the Company or any of its Subsidiaries an aggregate value exceeding $300,000, except for (i) in the case of the Company, for any such change inventory or amendment made other products sold to customers in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementExcluded Assets;
(b) mortgage, pledge or subject to Liens, other than Permitted Liens, any properties or assets except in pursuant to existing Contracts;
(c) acquire, lease or license any property or asset having a value individually exceeding $100,000;
(d) amend the ordinary course charter, articles or certificate of business in relation to incorporation or formation or any other organizational document or bylaws or operating agreement or other constitutive document of the Company’s Subsidiaries ;
(ie) makeissue, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issuedeliver, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees)pledge, pledgetransfer, convey, dispose of, encumber, dispose of amend or deliver modify any additional shares of their capital stock equity interests, or any class or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other into equity interests, of the Company;
(cf) except as otherwise permitted declare, set aside, make or not restricted by this Section 8.01 pay any dividend or other distribution (other than dividends or other distributions of cash) with respect to any equity interests, or any class or securities convertible into or exchangeable into equity interests, of the Company;
(g) enter into, assumerenew, assign, partially extend or completely amend or modify in any material term of respect, terminate, cancel, or terminate (excluding waive, release or assign any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sellright or claim under, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its SubsidiariesContract, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(fh) (i) fail increase the wages, salaries, compensation, severance, pension or other benefits payable to maintain its existenceany employee, or (ii) enter into a new material line pay any bonus or other amount to any employee (except, in the case of business the foregoing clauses (other than the electricity transmission i) and distribution and wind and solar manufacturing businesses(ii), either (iiix) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation pursuant to the Company’s Subsidiaries), (iv) make any acquisition terms of any assets, business, equity interests Contracts or other properties or incur any liability or obligation Benefit Plans in excess of $1,000,000 individually or $2,500,000 in effect on the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), date hereof or (viy) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice with respect to employees who are not directors, officers or between the Company and its Subsidiariesotherwise have managerial responsibilities);
(i) enter into, adopt, modify or amend in a manner materially detrimental any Benefit Plan, other than pursuant to the Company terms of Contracts or any of its Subsidiaries, terminate, cancel, surrender, permit Benefit Plans in effect on the date hereof or to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit the extent required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relationsby applicable Law;
(j) exceptgrant or acquire, in relation agree to the Company’s Subsidiaries, in the ordinary course of businessgrant to or acquire from any Person, or as required by applicable Lawdispose of or permit to lapse any rights to, make or change any material Tax election Intellectual Property, or adopt disclose or change any material Tax accounting method, file any material amendment agree to disclose to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any ActionPerson, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations representatives of the Company or Purchaser, any of its SubsidiariesTrade Secret, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice;
(k) settle or dismiss any Action threatened against, relating to or involving the Company or the Business, except in the ordinary course of business consistent with past practice and in an amount not in excess of $100,000, in any individual case, or $300,000 in the aggregate, or in a manner that would prohibit or materially restrict the operation of the Business;
(l) enter into any Contracts with the Seller or any of its Affiliates, except in the ordinary course of business consistent with past practice;
(m) make any material changes in its accounting methods, principles or practices;
(n) (i) make or change any election related to Taxes (unless required by Law), the making or changing of which would materially increase the Company’s liability for Taxes subsequent to the Closing Date, or (ii) settle or compromise any material Tax liability of the Company or with respect to the Assets;
(o) be party to any merger, acquisition, consolidation, recapitalization, liquidation, dissolution or similar transaction involving the Company or the Business; or
(qp) authorize or commit or agree to do any action prohibited under this Section 8.01of the foregoing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (M & F Worldwide Corp)
Conduct of Business. From the date of this Agreement until hereof through the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Closing, the Company Seller shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II Buyer in writing (which consent shall not be unreasonably conditionedwriting, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business the Business in the ordinary course of business and substantially in accordance with past practice and in substantial compliance with all applicable laws and regulations the failure to comply with which would not have a Material Adverse Effect, pay and cause its Subsidiaries to pay material debts and Taxes when due unless, solely with respect to Taxes, Seller is contesting such Taxes in good faith, to pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practice, including practice to preserve intact the goodwill Business and the Purchased Assets, use its commercially reasonable efforts consistent with past practice to keep available the services of its and its Subsidiaries' present business officers and key employees and use its commercially reasonable efforts consistent with past practice to preserve its and its Subsidiaries' relationships (contractual or otherwise) with its customers, suppliers, joint venture partnersdistributors, distributors and creditors licensors, licensees, and others having material business relationships dealings with it or its Subsidiaries, and retain its current officers and other key employees and (ii) comply in all material respects Seller will not take any action inconsistent with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeesthis Agreement or with the consummation of the Closing. Without limiting the generality of the foregoing, Seller shall not, as it relates to the Business except as expressly specifically contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II Buyer in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Periodwriting:
(a) change or amend the certificate Restated Articles of incorporationIncorporation or Amended and Restated Bylaws, bylaws or other organizational documents as amended, of the Company Parent or any of its Subsidiaries except (i) in the case charter documents of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementBBI Biotech;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assumeextend, assignmaterially modify, partially terminate or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) renew any Contract of a type required or Lease relating to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real PropertyBusiness, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (vc) sell, assign, transfer, licensedividend, assignconvey, fail to maintain lease, mortgage, pledge or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company Purchased Assets, or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business)interests therein, or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, except in the ordinary course of business and, without limiting the generality of the foregoing, Seller will produce, maintain and sell Inventory relating to the Business consistent with its past practice or between the Company and its Subsidiariespractices;
(id) amend in a manner materially detrimental excluding the Liabilities under the Revolving Credit and Security Agreement, incur any Liability relating to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required Business for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, interest bearing indebtedness other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incurExcluded Liabilities, guarantee or otherwise become liable for (whether directlythe obligations of others, contingently or otherwise) any material Indebtednessindemnify others or, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify incur any terms of or any agreement with respect other Liability relating to any outstanding material Indebtednessthe Business;
(ne) make (i) grant any change bonus, severance or termination pay (otherwise than pursuant to policies or agreements of Seller in financial accounting methods, principles effect on the date hereof that are described on the Disclosure Schedule) or practices materially affecting increase any benefits payable under its severance or termination pay policies or agreements in effect on the reported consolidated assets, liabilities date hereof or results increase in any material respect the compensation or fringe benefits of operations any employee of the Company Business with an annual salary of $50,000 or pay any of its Subsidiaries, except insofar as may have been benefit not required by a change in Law, IFRS any existing Employee Plan or GAAP;
(o) fail policy to maintain, cancel or materially change coverage under for any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as employees of the date hereofBusiness;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.
Appears in 1 contract
Conduct of Business. From Unless otherwise contemplated hereby or consented to by Purchaser in writing, or required under the Bankruptcy Code or pursuant to applicable Laws, from the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Closing, the Company Seller shall, and shall cause each of its Subsidiaries Affiliates to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend conduct the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation Business to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries extent possible in the ordinary course of business;
(eb) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or use its Subsidiaries, in effect on the date of this Agreement, reasonable efforts to: (i) grant any material increase in compensationmaintain satisfactory relationships with its and its Affiliates' clients, benefits or severance customers, licensors, licensees and suppliers that are parties to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice Assumed Contract; (ii) adoptsubject to Section 5.01(a), enter into or materially amend any Company Benefit Plan other than preserve and maintain the tangible Purchased Assets in the good order and repair, ordinary course of business with respect to annual renewals, wear and tear excepted; (iii) grant or provide perform its obligations under each of the Assumed Contracts, and keep each such Assumed Contract in full force and effect, free from any material bonusright of cancellation, severance forfeiture or termination payments or benefits to any employee or director of the Company or its Subsidiaries, (except in connection accordance with the promotion, hiring or firing of any employee (to the extent permitted by clause its terms); (iv) prevent any additional Lien from attaching to any of this paragraphthe Purchased Assets; and (v) promptly notify Purchaser of any change in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 Purchased Assets which would result in the ordinary course of business consistent with past practicea Material Adverse Effect;
(fc) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) not sell, transfer, licenseconvey, assigndestroy, fail to maintain alter, modify or otherwise dispose of or encumber make any distribution of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any ActionPurchased Assets, other than licenses in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregateaccordance with this Agreement;
(md) not settle or compromise any pending or threatened Claim or Action (i) incur, guarantee that relates to the transactions contemplated hereby or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) other Acquisition Agreements or (ii) except the settlement or compromise of which shall affect in any manner the ordinary course Purchased Assets;
(e) not make any promises, representations or guarantees to employees of business, amend, restate the Business that would in any way bind or modify any terms of obligate Purchaser (or any agreement Affiliate of Purchaser) to hire any such employees;
(f) not make any representation or commitment to employees of Seller performing duties in connection with the Business with respect to Purchaser's intention (or that of any outstanding material IndebtednessAffiliate of Purchaser) to offer employment to any such employee, or in relation to the continuation of any Benefit Plan by Purchaser after the Closing;
(ng) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiariesnot increase, except insofar as may have been required pursuant to a severance and/or retention plan approved by a change the Bankruptcy Court, any benefits or amounts payable pursuant to termination policies or employment agreements applicable to any employee of Seller engaged in Law, IFRS or GAAP;performing duties directly in connection with the Business; and
(oh) fail pay all Taxes and all amounts required to maintain, cancel be paid or materially change coverage contributed under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01Benefit Plan.
Appears in 1 contract
Conduct of Business. From PST covenants and agrees that between the date of ------------------- this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries toClosing, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as otherwise consented to by RMG II ADE in writing (which consent shall not be unreasonably conditionedwriting, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim PeriodPST shall:
(a) change conduct its business only in the usual and ordinary course using customary policies and procedures and maintain its assets and properties in substantially the same manner as heretofore; (b) refrain from making any purchases or amend the certificate sales of incorporationany assets and from mortgaging, bylaws pledging, subjecting to lien, or other organizational documents of the Company or otherwise encumbering any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), ; (c) refrain from incurring any obligations or liabilities (vi) adopt absolute or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregatecontingent) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, those that are usual and normal in the ordinary course of business consistent its business; (d) refrain from making any change in its Articles of Incorporation, Bylaws, or authorized or issued capital stock; (e) refrain from declaring, setting aside, or paying any dividend, making any other distribution in respect of its capital stock, or making any direct or indirect redemption, purchase, or other acquisition of its capital stock; (f) refrain from making any change in the compensation payable or to become payable to any of its officers, employees, or consultants or making any bonus payment to or arrangement with past practice any of them; (g) refrain from taking any action which might affect adversely ADE's ability to account for the Merger as a pooling of interests for accounting purposes or between which would materially affect the Company value of PST to ADE; (h) use its best efforts to prevent any change with respect to its management and its Subsidiaries;
supervisory personnel or banking arrangements; (i) amend in a manner materially detrimental use its best efforts to keep intact its business organization, to keep available the Company or any services of its Subsidiariespresent officers and employees, terminate, cancel, surrender, permit and to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for preserve the conduct goodwill of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authorityall suppliers, customers, suppliers, contractors and other Persons others having business relations with which it has material business relations;
it; (j) except, promptly advise ADE in relation to the Company’s Subsidiaries, in the ordinary course writing of business, any matter arising or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) discovered after the Closing;
date of this Agreement which, if existing or known at the date hereof, would be required to be set forth or described herein; and (k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries use all reasonable efforts in good faith to engage or compete cause all closing conditions specified in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries Article VI to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect be met and all transactions contemplated herein to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01be consummated.
Appears in 1 contract
Samples: Merger Agreement (Ade Corp)
Conduct of Business. From the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) EXTECH will conduct and operate its business only in the ordinary and usual course consistent and make no change in any of its business practices and policies without the prior written consent of the Shareholders except that EXTECH may, without such consent, take such actions with past practiceregard to its subsidiary, including to preserve IAH, Inc. ("IAH"), and/or the goodwill International Airport Hotel, including, without limitation, the settlement of the pending lawsuit between the Puerto Rico Ports Authority and present business relationships IAH (contractual unless the settlement provides for the payment of monetary damages by IAH) and the sale, lease or otherwise) with other disposition of the assets of IAH as it, in its customerssole discretion, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeesdeems necessary or proper. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by provided in this Agreement (including Agreement, prior to the amendment Closing, EXTECH will not, without the prior written consent of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim PeriodShareholders:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case amend its Certificate of the Company, for any such change Incorporation or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock By-Laws (except in each case in relation that it may amend it By-Laws to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required adopt provisions that are contemplated herein to be listed on Schedule 4.13(aincluded as an amendment to EXTECH's Certificate of Incorporation and subject to Stockholder Approval);
(dii) sellenter into, transferadopt or amend any bonus, leaseprofit sharing, pledge compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance or otherwise encumberother employee benefit Contract, abandontrust, cancel plan, fund or convey other arrangement for the benefit or dispose welfare of any assetsdirector, properties officer or business of the Company employee, or any of its Subsidiaries, including Real Property, (except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except normal increases in the ordinary course of business consistent with past practice (ii) adoptthat, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate, do not result in a material increase in benefits or compensation expense to EXTECH) other than increase in any capital expenditure (manner the EXTECH CORPORATION 30 compensation or series fringe benefits of related capital expenditure) approved under the Shareholders’ Agreement any director, officer or which is consistent employee or pay any benefit not required by any plan and arrangement as in all material respects with the Company’s annual capital expenditure budget for the periods following effect as of the date hereof;
(hiii) make acquire, sell, lease or dispose of any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in assets outside the ordinary course of business consistent with past practice or between any assets which in the Company and its Subsidiariesaggregate are material to EXTECH;
(iiv) amend in a manner materially detrimental to the Company or any of its Subsidiariesacquire (by merger, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiariesconsolidation, or otherwise terminate its relationships with acquisition of stock or assets) any Governmental Authoritycorporation, customers, suppliers, contractors and partnership or other Persons with which it has material business relationsorganization or division thereof;
(jv) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change take any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in outside the ordinary course of business consistent with past practice; or
(qvi) authorize adopt any resolution, or commit enter into or agree amend any Contract, with respect to do any action prohibited under this Section 8.01of the foregoing.
Appears in 1 contract
Samples: Purchase Agreement (Extech Corp)
Conduct of Business. From the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms Except (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except i) as expressly contemplated by or necessary to effectuate this Agreement, including consummation of the Pre-Closing Reorganization, (ii) as required by applicable Law or pursuant to any COVID-19 Measures applicable (iii) as set forth in Section 5.1 of the Disclosure Schedule, during the period from the date hereof to the Company and its Subsidiaries or as consented to by RMG II Closing Date, unless the Purchaser otherwise consents in writing advance (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve Sellers will cause the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it Company and its Subsidiaries to conduct the business of the Company and their respective businesses, assets and employeesits Subsidiaries in the Ordinary Course of Business. Without limiting the generality of the foregoing, except (i) as expressly contemplated by or necessary to effectuate this Agreement (Agreement, including the amendment consummation of the terms of the CCPS substantially in the form set out in Exhibit EPre-Closing Reorganization, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), (ii) as required by applicable Law Law, or pursuant to any COVID-19 Measures applicable (iii) as set forth in Section 5.1 of the Disclosure Schedule, during the period from the date of this Agreement to the Company and its Subsidiaries or as consented to by RMG II in writing Closing Date, without the prior written consent of the Purchaser (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), the Company shall not, and Sellers will cause the Company shall cause and its Subsidiaries not to, during to (other than in the Interim Period:Ordinary Course of Business):
(a) change incur, assume or amend the certificate of incorporationguarantee any Indebtedness for borrowed money, bylaws or other organizational documents of the Company or any of its Subsidiaries except than (i) in connection with the case purchase or lease of the Company, for any such change capital equipment or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementIndebtedness that will otherwise be paid pursuant to Section 1.5;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchasedeliver, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, purchase any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee equity securities of the Company or any of its Subsidiaries, or grant or enter into any other individual who is providing options, warrants, rights, agreements or will provide services commitments with respect to the issuance of the securities of the Company or any of its Subsidiaries, or amend any terms of any such equity securities or agreements, in each case except for issuances of securities upon the exercise of outstanding options and warrants and redemptions or purchases pursuant to the terms of existing Contracts of the Company or any of its Subsidiaries;
(c) materially increase the rate of compensation or benefits (other than any employee with annual base compensation of less than $1,000,000 customary periodic raises in the ordinary course Ordinary Course of business consistent Business) of, or pay or agree to pay any benefit to, present or former members, managers, directors or officers of the Company or any of its Subsidiaries, except as may be required by any existing Company Benefit Plan or any agreement, policy, program or arrangement of the Company or any of its Subsidiaries, or that which would be deemed a Transaction Expense;
(d) except as may be required by Law or existing Contract, or that which would be deemed a Transaction Expense, materially increase the compensation payable to any executive employee of the Company or any of its Subsidiaries;
(e) sell, lease, transfer or otherwise dispose of any material capital assets, real, personal or mixed, or mortgage or encumber any material properties or assets, whether real or personal, other than (i) a sale, transfer or disposition to a third-party for fair market value, (ii) a mortgage or encumbrance in connection with past practicethe purchase or lease of real estate or (iii) Permitted Liens;
(f) (i) fail acquire or agree to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with with, or by purchasing any equity interest in the stock or a substantial portion of the assets of) , or by any other manner, any business or any corporation, partnership, association, joint venture association or other business organization or division thereof (or otherwise acquire or agree to acquire any assets which are material to the Company and its Subsidiaries, taken as a whole, other than in connection with the ordinary course purchase or lease of business in relation to capital equipment;
(g) effectuate a “plant closing” or “mass layoff” (as those terms are defined under the Company’s WARN Act) of employees of the Company or any of its Subsidiaries), ;
(ivh) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber amend any of the Fundamental Documents of the Company or any of its Subsidiaries;
(i) change any of its material assets accounting principles, methods or material Intellectual Property pertaining practices other than as required by GAAP; or
(j) agree, whether in writing or otherwise, to do any of the foregoing. Notwithstanding anything to the contrary, (i) nothing contained herein shall give to the Purchaser, directly or indirectly, the right to control or direct the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation prior to the Company’s Subsidiaries, Closing and (ii) the Sellers (in the ordinary course of business consistent with past practice or between their sole discretion) may and may cause the Company and its Subsidiaries;
(i) amend in a manner materially detrimental Subsidiaries to at any time or from time to time prior to the Company Closing use any cash on hand for any purpose (including making distributions or paying dividends to the Sellers or any of its Subsidiariestheir Affiliates, terminateredeeming any equity interests, cancel, surrender, permit to lapse or fail to renew or maintain paying any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates Taxes (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securitiesestimated Taxes) or (ii) except in the ordinary course of business, amend, restate or modify repaying any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01).
Appears in 1 contract
Conduct of Business. From During the period from the date of this Agreement until through the earlier Effective Time, each of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and Parent will conduct its operations, and will cause each of the Subsidiaries or as consented of the Company and Acquisition Sub to by RMG II conduct its operations, in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Ordinary Course and each of the Company and Parent will use commercially reasonable efforts to (i) conduct keep available the service of its and operate its business in Subsidiaries’ current officers, (ii) keep available the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other services of key employees and (iiiii) comply preserve in all material respects its and its Subsidiaries’ relationships with all Laws applicable to material customers, suppliers and others having business dealings with it and its Subsidiaries and their respective businesses, assets and employeesSubsidiaries. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by provided in or allowed under this Agreement (including Agreement, during the amendment period from the date hereof through the Effective Time, each of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and Parent will not, and neither will permit its Subsidiaries or as consented to by RMG II in writing (to, without the prior consent of the other party, which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Periodconditioned:
(a) change amend its Certificate of Incorporation or bylaws or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of any class or any other than transfers of Company Stock held by former employees of the Company equity securities or its Subsidiaries to existing employeesequity equivalents (including any options or appreciation rights), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable except for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for (i) the issuance of shares Company Shares upon (A) exercise, in accordance with its terms existing on the date hereof, of their capital stockCompany Options and Company Warrants and (B) the conversion of Series Seed Preferred Stock into Company Common Stock; (ii) the issuance of Parent Shares upon exercise, or splitin accordance with its terms existing on the date hereof, combine or reclassify any shares of their capital stock Parent Options and Parent Warrants; (except in each case in relation to iii) the repayment, prepayment or refinancing of or the enforcement issuance by Parent of any security in respect stock options, restricted stock units or other awards to new or existing directors, officers and other employees of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or Parent; and (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity intereststhose matters set forth on Schedule 5.1(b);
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Mergerthis Agreement);
(gd) make (i) incur or assume any capital expenditures (long-term or commitment to make short-term debt or issue any capital expenditures) in excess debt securities, except for borrowings under existing lines of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 credit in the aggregateOrdinary Course of Business, (ii) other than any capital expenditure (assume, guarantee, endorse or series of related capital expenditure) approved under the Shareholders’ Agreement otherwise become liable or which is consistent in all material respects with the Company’s annual capital expenditure budget responsible, whether directly, contingently or otherwise, for the periods following the date hereof;
obligations of any other Person, (hiii) make any loans, advances or capital contributions to, to or investments in, in any other Person, other thanexcept for customary loans or advances to employees, in relation each case in the Ordinary Course of Business, or (iv) create any Encumbrance upon any Assets, except for Permitted Encumbrances;
(e) other than in the Ordinary Course of Business and except as may be required by law to maintain the tax qualified status or intended tax treatment of any Employee Plan or as otherwise required by applicable law, enter into, adopt or amend or terminate any Employee Plan (with such defined term including plans of either the Company or Parent, as applicable, for purposes of this section) or increase the compensation or fringe benefits of any director or officer or any employee or pay any benefit not required by any plan or arrangement as in effect as of the date hereof (including the granting of appreciation rights or performance units);
(f) acquire, sell, lease or dispose of any inventory or other Assets in any single transaction or series of related transactions Outside the Ordinary Course of Business;
(g) enter into, extend, modify, terminate or renew any Contract of a type required to be scheduled on Schedule 3.6 or any Real Property Lease (with such schedule and defined term including Contracts or real property leases of either the Company or Parent, as applicable, for purposes of this section), except Service Agreements and other Contracts entered into in the Ordinary Course of Business;
(i) acquire, by merger, consolidation or acquisition of stock or assets, any corporation, partnership or other business organization or division thereof or any equity interest therein or (ii) authorize any new capital expenditure or expenditures which individually is in excess of $50,000 or in the aggregate are in excess of $50,000; provided, that, none of the foregoing shall limit any capital expenditure required pursuant to existing Contracts;
(i) settle or compromise any pending or threatened Action (i) which relates to the Companytransactions contemplated hereby or (ii) the settlement or compromise of which provides for covenants that restrict a party’s Subsidiariesability to operate or compete or would otherwise have, individually or in the ordinary course aggregate, a Company Material Adverse Effect or Parent Material Adverse Effect, as applicable; provided, that, no such settlement or compromise shall obligate any party to pay amounts or take any action after the Closing;
(j) change any cash management practices (including collection practices and payment terms), accounting methods, principles or practices utilized by a party or any of business consistent with past practice or between the Company and its Subsidiaries;
(ik) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting methodelection, file any material amendment to any income Tax Return (except as required by law) or other any amended material income Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, amended settle or compromise any claim or assessment Action in respect of material Taxes, change any annual Tax accounting period, adopt or change any method of Tax accounting other than such changes required by GAAP or applicable law, enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or material closing agreement relating to any Tax, knowingly surrender any right to claim a material Tax refund, or consent to any extension or waiver of the statutory period statute of limitations period applicable to any Tax claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;assessment; or
(l) waiveknowingly take or agree in writing or otherwise to take any of the actions described in Sections 5.1(a) through 5.1(k); provided, releasehowever, compromisethat with respect to Parent, settle nothing in this Section 5.1 shall be construed to restrict or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) prohibit Parent from (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in making all filings and submissions required to be made with the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) SEC or (ii) except taking any action it deems necessary or appropriate in order to gain and remain in compliance with the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations rules and listing standards of the SEC or the Nasdaq Stock Market. In addition, the Company or and Parent will prepare all Tax Returns that are due prior to Closing, and shall provide any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all such material respects income Tax Returns to the insurance coverage maintained with respect other party no later than ten days prior to the Company due date for filing such material income Tax Return for the review and consent of such other party, which consent shall not be unreasonably withheld, conditioned or delayed. Each party shall be deemed to have consented to the filing of such Tax Returns unless it notifies the other party of any items of its Subsidiaries or their assets or properties disagreement in writing within five Business Days after the receipt of such Tax Returns for review. Each party shall in good faith makes revisions to such Tax Returns as of reasonably requested by the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01other party.
Appears in 1 contract
Samples: Merger Agreement (Sito Mobile, Ltd.)
Conduct of Business. From the date of this Agreement until hereof through the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Closing, the Company Shareholder shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II PainCare in writing (which consent shall not writing, cause the Company to be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business operated in the ordinary course consistent and in accordance with past practice, including to preserve practice and will not take any action inconsistent with this Agreement or with the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employeesconsummation of the Closing. Without limiting the generality of the foregoing, the Company shall not, and, with respect to the Company, the Shareholder shall not, except as expressly specifically contemplated by this Agreement (including the amendment Agreement, as set forth in Section 11.6 of the terms of the CCPS substantially in the form set out in Exhibit EDisclosure Schedule, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II PainCare in writing (which such consent shall not to be unreasonably conditioned, withheld, delayed withheld or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:delayed):
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assumeextend, assignmaterially modify, partially terminate or completely amend or modify renew any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company lease or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000contract, except in the ordinary course of business or as contemplated by this Agreement;
(c) sell, assign, transfer, convey, lease, mortgage, pledge or otherwise dispose of or encumber any of the assets or any interests therein of the Company except in the ordinary course of business and, without limiting the generality of the foregoing, the Company will maintain, dispose of, and sell inventory consistent with past practice practices;
(iid) incur any liability for indebtedness for borrowed money, guarantee the obligations of others, indemnify or agree to indemnify others or, except in the ordinary course of business, incur any other liability;
(e) take any action with respect to the grant of any bonus, severance or termination pay (otherwise than pursuant to policies or agreements of the Company in effect on the date hereof that are described in the Disclosure Schedule) or with respect to any increase of benefits payable under its severance or termination pay policies or agreements in effect on the date hereof or increase in any manner the compensation or fringe benefits of any employee of the Company or pay, any benefit not required by any existing Employee Plan or policy;
(f) make any change in the key management structure of the Company, including, without limitation, the hiring of additional officers or the termination of existing officers;
(g) adopt, enter into or materially amend any Company Benefit Plan Employee Plan, agreement (including, without limitation, any collective bargaining or employment agreement), trust, fund or other than arrangement for the benefit or welfare of any employee, except for any such amendment as may be required to comply with applicable regulations;
(h) fail to maintain all Employee Plans in accordance with applicable Regulations;
(i) acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all of the ordinary course of business with respect to annual renewalsassets of, (iii) grant or provide otherwise acquire any material bonusassets or business of, severance any corporation, partnership, association or termination payments other business organization or benefits division thereof or acquire any subsidiary;
(j) willingly allow or permit to be done any employee or director act by which any of the insurance policies of the Company or its SubsidiariesShareholder may be suspended, except in connection with the promotionimpaired or canceled;
(k) enter into, hiring renew, modify or firing of revise any employee (agreement or transaction relating to the extent permitted Company with any of its Affiliates except as contemplated by clause this Agreement;
(ivl) of this paragraph) in fail to maintain the ordinary course of business consistent with past practice, or (iv) hire any employee assets of the Company or any in substantially their current state of its Subsidiariesrepair, excepting normal wear and tear, or fail to replace (consistent with the Company’s past practice) inoperable, worn-out or obsolete or destroyed assets;
(m) make any other individual who is providing loans or will provide services advances relating to the Company to any partnership, firm, individual, or any of its Subsidiariescorporation, other than any employee with annual base compensation of less than $1,000,000 except for expenses incurred in the ordinary course of business consistent with past practice;
(f) (in) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent comply in all material respects with all laws and regulations applicable to the Company’s annual capital expenditure budget for the periods following the date hereof;
(ho) make intentionally do any loans, advances other act which would cause any representation or capital contributions towarranty of the Company or the Shareholder in this Agreement to be or become untrue, or investments in, any other Person, other thancovenant in this Agreement to be breached, in relation any material respect;
(p) fail to the Company’s Subsidiaries, in the ordinary course of business use reasonable efforts consistent with past business practice or between to (i) maintain the Company so that the services of its officers, employees, consultants and agents will remain available to it on and after the Closing Date, (ii) maintain existing relationships with suppliers, patients, customers and others having business dealings with the Company and its Subsidiaries;
(iiii) amend in a manner materially detrimental to otherwise preserve the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct goodwill of the business of the Company or any of its Subsidiaries, or otherwise terminate its so that such relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relationsgoodwill will be preserved on and after the Closing Date;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(kq) enter into any agreement that restricts agreement, or otherwise become obligated, to do any action prohibited hereunder;
(r) except as provided herein, declare, set aside for payment, or pay any dividend or distribution in respect of any capital stock of the ability Company, redeem, purchase or otherwise acquire any of the Company’s equity securities; or otherwise transfer any of the assets of the Company to or on behalf of any Shareholder of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability Affiliate of the Company Company, including, without limitation, any payment of principal of or interest on any debt owed to any of the foregoing or any payment of its Subsidiaries to enter into a new line of business;
(l) waivebonus, release, compromise, settle fee or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect payment to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar foregoing as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as an employee of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practiceCompany; or
(qs) authorize fail to comply with all applicable filing, payment, withholding, collection and record retention obligations under all applicable federal, state, local or commit or agree to do any action prohibited under this Section 8.01foreign Tax laws.
Appears in 1 contract
Conduct of Business. Pending the Closing. From the date of this Agreement hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries toClosing, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of and except for any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required taken by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied)Buyer, the Company shall not, and the Company Parent shall cause its Subsidiaries not to, during each of the Interim Periodfollowing to occur and shall promptly notify the Buyer upon Parent's knowledge of the failure of any of the following to occur:
(a) change or amend The Subsidiaries will operate the certificate of incorporation, bylaws or other organizational documents business of the Company or any of its Subsidiaries except (i) only in the case of the Companyusual, for any such change or amendment made in the regular and ordinary course of business and which will not have an material adverse impact manner, on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreementa basis consistent with past practice;
(b) except The Subsidiaries shall not adopt or amend in any material respect any Subsidiary Benefit Plan and shall not grant any increase in the ordinary course of business in relation compensation, salaries or wages payable to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, reasonable increases in the ordinary course of business and consistent with past practice or as a result of contractual arrangements or sales compensation plans existing on the date hereof, or as otherwise necessary to implement the provisions of Section 5.3, or as otherwise required by applicable Laws;
(vc) The Subsidiaries shall not issue or authorize the creation issuance of, or agree to issue or sell any shares of their capital stock of any pledgeclass;
(d) The Subsidiaries shall not sell, encumbrance lease, license or other security interest over otherwise transfer or dispose of any land, property material properties or assets of Subsidiaries the Subsidiaries, or any of the Company to secure Indebtedness incurred by Intellectual Property Rights, except for the Company or its Subsidiaries sale of assets in the ordinary course of business;
(e) except as otherwise required by Law The Subsidiaries shall not initiate or existing Company Benefit Plans, policies settle any lawsuit or Contracts claim if such lawsuit or settlement imposes a material continuing non-monetary obligation on the Business other than the recognition of the Company or its Subsidiaries, intellectual property rights of another party; and
(f) The Subsidiaries shall maintain in effect all insurance policies in effect on the date hereof or replace such policies with policies providing comparable coverage and issued by insurers of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except comparable ratings so long as such insurance policies are reasonably available on comparable terms in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01market generally.
Appears in 1 contract
Conduct of Business. From the date a) The operation and maintenance of this Agreement until the earlier Tenant’s business shall be of the Closing Date highest quality and to a standard compatible with the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, Building.
b) Tenant shall operate and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its carry on Tenant’s business continuously in the ordinary course consistent with past practicePremises during the continuance hereof and, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting without restricting the generality of the foregoing, except as expressly contemplated by this Agreement (including Tenant shall not vacate or leave the amendment Premises during the continuance hereof. Tenant acknowledges that it is an important tenant of the terms Building and that the continuous carrying on of Tenant’s business in the Premises is essential to the economic viability of the CCPS substantially in the form set out in Exhibit EBuilding.
c) Tenant shall not paint, the conversion display, inscribe, place or affix any sign, symbol, notice or lettering of any CCPS in accordance kind anywhere outside the Premises (whether on the outside or inside of the Premises) so as to be visible from the outside of the Premises, with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect exception only of any Indebtedness incurred by the SS Group or identification sign and such other signs as Landlord may permit (such permission not to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if containing only the name of Tenant and such electionother names as Landlord may permit, changeand to be subject to the approval of Landlord as to design, amendmentsize, agreementlocation and content, settlementacting reasonably.
d) Tenant acknowledges that its covenants and obligations set forth in Subarticle 11.2(a), consent or other action could, individually or (b) and (c) are covenants and obligations designed for the mutual benefit and protection of all tenants of premises in the aggregateBuilding and to render the Building as a whole of maximum attractiveness to the public, reasonably be expected and to achieve the maximum volume of business therein. In the event that Tenant is in breach of any of such covenants or obligations or fails to observe or perform any of them, then without prejudice to any other right or remedy which Landlord may have under this Lease or otherwise at law or equity, Landlord shall have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries right to engage or compete bring action in any line court of businesscompetent jurisdiction against Tenant for an injunction, judgement or enter into any agreement that restricts the ability of the Company order directing Tenant to remedy such breach and to observe and perform such covenant or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01obligation.
Appears in 1 contract
Samples: Lease (Meta Materials Inc.)
Conduct of Business. From and after the date of this Agreement and until the earlier of the Initial Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries toDate, except as expressly set forth on SCHEDULE 5.2 or as otherwise contemplated by this AgreementAgreement or the Schedules hereto or as Buyer shall otherwise consent to in writing, as required by applicable Law or pursuant to any COVID-19 Measures applicable Seller, with respect to the Company and its Subsidiaries or as consented to by RMG II in writing Business:
(which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (ia) conduct and operate its business will carry on the Business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) makewill not permit, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice or as may be required by Law or a Governmental Body, all or any of the Purchased Assets (iireal or personal, tangible or intangible) adoptpresently and actively used in the operation of the Business to be sold, enter into licensed or materially amend subjected to any Company Benefit Plan Encumbrance (other than a Permitted Encumbrance granted in the ordinary course of business with respect to annual renewalsbusiness);
(c) will not acquire, (iii) grant sell, lease, license, transfer or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing dispose of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 asset that would otherwise be a Purchased Asset except in the ordinary course of business consistent with past practice;
(fd) (i) fail to maintain its existence, (ii) enter into a new will not terminate or materially extend or materially modify any material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than Contract except in the ordinary course of business consistent with past practice; provided however that Seller shall provide written notice to Buyer before or promptly following any such termination, extension or modification;
(e) will not do any other act which would cause any representation or warranty of Seller in relation this Agreement to the Company’s Subsidiaries), be or become untrue in any material respect or intentionally omit to take any action necessary to prevent any such representation or warranty from being untrue in any material respect at such time; or
(ivf) make will not enter into any acquisition of any assets, business, equity interests agreement or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation commitment with respect to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets foregoing. From and after the Initial Closing Date until any Delayed Closing Date, as applicable, except as set forth on SCHEDULE 5.2 or material Intellectual Property pertaining as otherwise contemplated by this Agreement or the Schedules hereto or as Buyer shall otherwise consent to in writing, Seller, with respect to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 Remaining Assets:
(a) will not permit, other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in as may be required by Law or a manner materially detrimental to the Company Governmental Body, all or any of its Subsidiariesthe Remaining Assets (real or personal, terminatetangible or intangible) to be sold, cancel, surrender, permit licensed or subjected to lapse or fail to renew or maintain any material authorization from Encumbrance (other than a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, Permitted Encumbrance granted in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing);
(kb) enter into will not acquire, sell, lease, license, transfer or dispose of any agreement asset that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into would otherwise be a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than Remaining Asset except in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregateconsistent with past practice;
(mc) (i) incur, guarantee will not terminate or otherwise become liable for (whether directly, contingently materially extend or otherwise) materially modify any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (Contract which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) is a Remaining Asset except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; provided however that Seller shall provide written notice to Buyer before or promptly following any such termination, extension or modification;
(d) will not do any other act which would cause any representation or warranty of Seller relating to any Remaining Asset in this Agreement to be or become untrue in any material respect or intentionally omit to take any action necessary to prevent any such representation or warranty from being untrue in any material respect at such time; or
(qe) authorize will not enter into any agreement or commit or agree commitment with respect to do any action prohibited under this Section 8.01of the foregoing.
Appears in 1 contract
Conduct of Business. From the date of this Agreement until through the earlier of the Closing Date and the or valid termination of this Agreement in accordance with its terms pursuant to Article X (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly otherwise contemplated by this Agreement, as Agreement or the Ancillary Agreements or required by applicable Law or pursuant to any (including COVID-19 Measures applicable to the Company and its Subsidiaries Measures) or as consented to by RMG II Acquiror in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (ix) conduct and operate its the business of the Company in the ordinary course consistent with past practiceand (y) preserve intact the Company’s present business organization, including to retain the Company’s current officers, and preserve the goodwill and present business Company’s relationships (contractual or otherwise) with its customerskey suppliers and customers (if applicable), suppliersprovided, joint venture partnershowever, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, that no action or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted inaction by the Company or any Company Subsidiary in with respect of any Indebtedness incurred to matters specifically addressed by the SS Group or to comply with the obligations Section 6.1(a) through (y) shall be deemed a breach of the Company, its Subsidiaries foregoing unless such action or the SS Group in respect inaction would constitute a breach of such Indebtednessspecific provision of Section 6.1(a) through (y), . Except as required by applicable Law or pursuant to any COVID-19 Measures applicable to set forth on Section 6.1 of the Company and its Subsidiaries Disclosure Letter or as consented to by RMG II Acquiror in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), during the Interim Period, the Company shall not, and the Company shall cause its Subsidiaries not to, during except as otherwise contemplated by this Agreement or the Interim Period:Ancillary Agreements or required by Law (including COVID-19 Measures):
(a) change or amend the certificate Governing Documents of incorporation, bylaws the Company or any of the Company’s Subsidiaries or form or cause to be formed any new Subsidiary of the Company (excluding formation of any wholly owned Subsidiary of the Company and any change or amendment of the Governing Documents of the Company’s Subsidiaries made in the ordinary course of business);
(b) make or declare any dividend or distribution to the equityholders of the Company or make any other organizational documents distributions in respect of any shares of the Company Capital Stock or the equity interests of the Company or any of its Subsidiaries except Subsidiaries;
(ic) in the case split, combine, reclassify, recapitalize or otherwise amend any terms of the Company, for any such change shares or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case series of the Company’s or any of its Subsidiaries’ capital stock or equity interests, except for any such change or amendment made in transaction by a wholly owned Subsidiary of the ordinary course Company that remains a wholly owned Subsidiary of business or (iii) as expressly contemplated by this Agreementthe Company after consummation of such transaction;
(bd) except in the ordinary course purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, capital stock, property or otherwise with respect to any capital stock membership interests or other equity interests in any of the Company or its Subsidiaries, except for (iii) effect the acquisition by the Company or any recapitalizationof its Subsidiaries of any shares of capital stock, reclassification, split membership interests or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees equity interests of the Company or its Subsidiaries in connection with the forfeiture or cancellation of such interests, (ii) transactions between the Company and any wholly owned Subsidiary of the Company or between wholly owned Subsidiaries of the Company or (iii) purchases or redemptions pursuant to existing employeesexercises of Company Options or Company Warrants issued and outstanding as of the date hereof (or, with respect to Company Options, issued in compliance with Section 6.1(m)(ii), pledge, encumber, dispose of ) or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance withholding of shares to satisfy net settlement or Tax obligations with respect to Company Options or Company Warrants outstanding as of their capital stockthe date hereof (or, with respect to Company Options, issued in compliance with Section 6.1(m)) in accordance with the terms of such Company Options or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestsWarrants;
(ce) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify in any material term of respect or terminate (excluding any other than expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(dSection 4.21(a) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company Disclosure Letter, or any Real Property Lease, in each case, other than in the ordinary course of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 including, in the aggregate, (iicase of Contracts of a type required to be listed on Section 4.21(a)(i) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s SubsidiariesDisclosure Letter, in the ordinary course of business and consistent with past practice of the applicable Top Vendor) or as required by Law;
(vf) the creation sell, assign, transfer, convey, lease or otherwise dispose of or create or incur any pledge, encumbrance Lien (except for a Permitted Lien) on any material tangible assets or other security interest over any land, property or assets properties of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries, except for (i) dispositions of obsolete or worthless equipment, (ii) transactions among the Company and its wholly owned Subsidiaries or among its wholly owned Subsidiaries and (iii) transactions in the ordinary course of business;
(eg) acquire any ownership interest in any real property;
(h) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase severance, retention, change in compensationcontrol or termination or similar pay, benefits except in connection with the promotion, hiring or severance to termination of employment of any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except that is not a Key Company Employee in the ordinary course of business consistent with past practice business, (ii) hire or terminate the employment of any Key Company Employee, other than terminations of employment for cause or due to death or disability, (iii) terminate, adopt, enter into or materially amend any Company Benefit Plan (other than for those actions permitted by Section 3.3(b) of Agreement), (iv) increase the cash compensation or bonus opportunity of any employee, officer, director or other individual service provider, except in the ordinary course of business, (v) take any action to amend or waive any performance or vesting criteria or to accelerate the time of payment or vesting of any compensation or benefit payable by the Company or any of the Company’s Subsidiaries, except in the ordinary course of business with respect for employees other than Key Company Employees, or (vi) forgive any loans or issue any loans to annual renewalsemployees, (iii) grant officers, directors or provide any material bonus, severance or termination payments or benefits to any employee or director other individual service providers of the Company or and its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existenceacquire by merger or consolidation with, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses)or merge or consolidate with, (iii) or purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in substantially all or a substantial material portion of the assets of) any business or , any corporation, partnership, association, joint venture or other business organization or division thereof thereof;
(i) issue or sell any debt securities or warrants or other than rights to acquire any debt securities of the Company or any Subsidiary of the Company or otherwise incur or assume any Indebtedness, or (ii) guarantee any Indebtedness of another Person, except, in each case, in the ordinary course of business in relation amounts to exceed $2,500,000 individually or $10,000,000 in the aggregate or in respect of any such debt securities, warrants, rights to acquire debt securities, Indebtedness or guarantee of Indebtedness between the Company and any Subsidiary of the Company’s Subsidiaries), on the one hand, and any other Subsidiary of the Company, on the other hand;
(k) (i) make or change any material election in respect of material Taxes, (ii) materially amend, modify or otherwise change any filed material Tax Return, (iii) adopt or request permission of any taxing authority to change any accounting method in respect of material Taxes, (iv) make enter into any acquisition closing agreement in respect of material Taxes or enter into any assets, business, equity interests Tax sharing or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries)similar agreement, (v) sellsettle any claim or assessment in respect of material Taxes, transfer(vi) surrender or allow to expire any right to claim a refund of material Taxes or (vii) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes;
(l) take any action, license, assign, or knowingly fail to maintain take any action, where such action or otherwise dispose failure to act could reasonably be expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of or encumber any Section 368(a) of the material assets Code;
(m) (i) issue any additional shares of Company Capital Stock or material Intellectual Property pertaining securities exercisable for or convertible into shares of Company Capital Stock, other than the issuance of shares of Company Common Stock (A) upon the exercise of Company Options outstanding on the date hereof or issued in compliance with Section 6.1(m)(ii) pursuant to their terms under the business Company Incentive Plan and the applicable award agreements or (B) upon the exercise of Company Warrants or conversion of Company Notes, in each case, outstanding on the date of this Agreement in accordance with their terms as in effect as of the date of this Agreement or (ii) grant any additional Company Options or any of its Subsidiaries other equity or equity-based compensation, except in connection with a value in excess of $1,000,000 (new hires and promotions for employees other than Key Company Employees in the ordinary course of business);
(n) adopt a plan of, or (vi) adopt or otherwise enter into a plan of or effect a, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the MergerMergers);
(go) make waive, release, settle, compromise or otherwise resolve any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loansAction, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, except in the ordinary course of business consistent (including with past practice respect to any ordinary course claims under, and within the applicable policy limits of, Insurance Contracts or between Reinsurance Contracts) or where such waivers, releases, settlements or compromises involve only the payment of monetary damages in an amount less than $250,000 in the aggregate;
(p) sell, assign, transfer, convey, license, encumber or divest (or agree to do any of the preceding) any Intellectual Property that is material to the Company and its Subsidiaries (other than non-exclusive licenses granted in the ordinary course of business), or dispose of, abandon or permit to lapse any rights to any material Company Registered Intellectual Property except for the expiration of any such Company Registered Intellectual Property in accordance with the applicable statutory term;
(q) make or commit to make capital expenditures other than in an amount not in excess of the amount set forth on Section 6.1(q) of the Company Disclosure Letter, in the aggregate;
(r) enter into, modify, amend, renew or extend any Collective Bargaining Agreement, other than as required by applicable Law, or recognize or certify any Labor Organization, or group of employees of the Company or its Subsidiaries as the bargaining representative for any employees of the Company or its Subsidiaries;
(s) voluntarily terminate without replacement or fail to use reasonable efforts to maintain any License material to the conduct of the business of the Company and its Subsidiaries, taken as a whole;
(it) waive the restrictive covenant obligations of any current or former employee of the Company or any of the Company’s Subsidiaries;
(u) voluntarily terminate without replacement or amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminatetaken as a whole, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of insurance policy insuring the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(kv) enter into terminate or commute, nor materially modify, amend or waive compliance with any agreement that restricts the ability material provision of the Company any Reinsurance Contracts or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Actionmaterial Insurance Contracts, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregatebusiness;
(mw) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) make any material Indebtednesschanges in the methods, other than Indebtedness incurred policies, practices or principles of the Company or any of the Company’s Subsidiaries in effect on the date hereof with respect to reserving, hedging, underwriting, pricing, investing, risk management, reinsurance, marketing or claims administration or adopt any new reserving, hedging, underwriting, pricing, investing, risk management, reinsurance, marketing or claims administration methods, policies, practices or principles, except in each case in the ordinary course of business or to the extent required by applicable Laws, Applicable SAP or GAAP;
(which x) reduce or strengthen any reserves, provisions for losses and other liability amounts in respect of the avoidance of doubtInsurance Contracts and Reinsurance Contracts, includes any refinancing except (A) to the extent required by applicable Laws or issuance of debt securities) GAAP or (iiB) except other than in the ordinary course of business, amend, restate including as a result of loss or modify any expense payments to other parties in accordance with the terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form Insurance Contracts and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practiceReinsurance Contracts; or
(qy) authorize or commit or agree enter into any agreement to do any action prohibited under this Section 8.016.1.
Appears in 1 contract
Conduct of Business. From the date of this Agreement Execution Date until the earlier of the Closing Date and or the termination of this Agreement in accordance with its terms (the “Interim Period”), Fathom and the Company Fathom Blockers shall, and Fathom shall cause its Subsidiaries to, except as expressly contemplated or permitted by this AgreementAgreement or the other Transaction Agreements (including the consummation of the Pre-Closing Reorganization), as required by applicable Law set forth on Schedule 8.01 of the Fathom Schedules or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing Altimar (which consent shall not be unreasonably conditioned, withheld, delayed or denied), (a) use its commercially reasonable efforts to (i) conduct and operate its business in the ordinary course of business consistent with past practicepractice (including, including for the avoidance of doubt, recent past practice in light of COVID-19), (b) use commercially reasonable efforts to preserve intact the goodwill current business organization and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it ongoing businesses of Fathom and its Subsidiaries and maintain the existing relations and goodwill of Fathom and its Subsidiaries with their respective businessesmaterial business partners and (c) use its commercially reasonable efforts to maintain its cash management practices, assets including continuing to accrue and employeescollect accounts receivable, accruing and paying accounts payable and other expenses and establishing reserves for uncollectible accounts, in each case, in accordance with past cash management practices (including, for the avoidance of doubt, with respect to Fathom and its Subsidiaries and the Fathom Blockers). Notwithstanding anything to the contrary contained herein, nothing herein shall prevent Fathom or any of its Subsidiaries or the Fathom Blockers from taking or failing to take any necessary and commercially reasonably actions, in good faith, in response to any COVID-19 Measures; provided, that, to the extent practicable, prior to taking any such material actions Fathom or the Fathom Blockers, as the case may be shall use good faith efforts to provide written notice to Altimar and consult with Altimar on such actions or, if not practicable, shall provide written notice reasonably promptly thereafter. Without limiting the generality of the foregoing, except as expressly contemplated or permitted by this Agreement (including or the amendment other Transaction Agreements, as set forth on Schedule 8.01 of the terms of Fathom Schedules, actions with respect to the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS Pre-Closing Reorganization in accordance with their termsSection 2.01, the usage or entering into such documents and instruments and taking such actions as may be reasonably required distribution of cash by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the CompanyFathom Blockers, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing Altimar (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company or as required by Law, Fathom and each Fathom Blocker shall not, and the Company Fathom shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly otherwise contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practice;
(f) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.:
Appears in 1 contract
Samples: Business Combination Agreement (Altimar Acquisition Corp. II)
Conduct of Business. From The Shareholders shall not permit the date of this Agreement until the earlier of the Closing Date Company to, and the termination Company shall not, enter into any material agreements or take any other significant actions without the prior written consent of this Agreement in accordance with its terms (the “Interim Period”)TMC, the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly otherwise contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit EAgreement, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by Shareholders shall not permit the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall notto, and the Company shall cause its Subsidiaries not to, during the Interim Periodnot:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other Other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, set aside or (iv) hire pay any employee dividend or distribution of the Company or assets on its capital stock to, repurchase any of its Subsidiariescapital stock from, or enter into any other individual who is providing transaction with, any of the Shareholders (including any trustees or will provide services to beneficiaries thereof), or its directors, officers, employees, agents, or consultants;
(b) Enter into any agreement or commitment that would be a Material Agreement if in existence on the Company date hereof;
(c) Amend, modify or terminate any Material Agreement;
(d) Alter the manner of keeping its books, accounts or records or the accounting practices therein reflected;
(e) Issue any capital stock or any of security convertible into, or options, warrants or rights to acquire, its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practicecapital stock;
(f) Create, incur or assume any indebtedness or guarantee or otherwise become liable for any obligations of any other person;
(g) Make any loans, advances or new investments;
(h) cancel any debts owed to it, or settle any claims held by it, for less than the full amount due;
(i) fail to maintain amend its existenceArticles of Incorporation or Bylaws;
(j) acquire, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transferlease, licenseencumber, assign, fail to maintain transfer or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (assets, other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closingpractice;
(k) enter into make any agreement that restricts the ability of the Company or any of changes (including changes in compensation) in its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of businessemployment arrangements;
(l) waivetake any action that would, releaseor is reasonably likely to, compromise, settle result in any of the representations and warranties set forth in Articles 2 and 3 being untrue or satisfy any pending incorrect as of the date made or threatened Action or compromise or settle any liability or commence any Action, other than in at the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregateEffective Time;
(m) (i) incur, guarantee take any action which would frustrate TMC's and Acquisition Sub's ability to consummate the Transactions or otherwise become liable for (whether directly, contingently materially diminish the value of the Company or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course benefits reasonably anticipated by TMC and Acquisition Sub as a result of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;Transactions; or
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree Agree to do any action prohibited under this Section 8.01of the foregoing.
Appears in 1 contract
Conduct of Business. From During the period from the date of this Agreement until to the earlier of the Closing Date and the termination of this Agreement pursuant to its terms, except as required by applicable Law, as otherwise contemplated by this Agreement or as specifically set forth on Schedule 7.1 of the Transferor Parties Disclosure Schedule or as consented to in accordance writing by the Acquiror (which consent shall not be unreasonably withheld, conditioned or delayed), the Transferor agrees that it shall use commercially reasonable efforts to cause the Transferred Companies to conduct their businesses in the ordinary course consistent with its terms past practice and the management projections set forth on Schedule 7.1 of the Transferor Parties Disclosure Schedule (the “Interim PeriodManagement Projections”), including maintaining the Company shallratio of compensation to revenue (the “Compensation Ratio”) such that the Compensation Ratio will be consistent with the Compensation Ratio contained in the Management Projections, and will use commercially reasonable efforts consistent therewith to cause the Transferred Companies to keep intact their respective businesses, to maintain and preserve relationships with key customers, employees, suppliers, regulators and others having business relationships with the Transferred Companies. Each Transferor Party hereby agrees that during the period from the date of this Agreement to the earlier of the Closing and the termination of this Agreement pursuant to its terms, that it shall not, and shall cause its Subsidiaries not permit the Transferred Companies to, (A) amend its Organizational Documents, (B) issue, repurchase, redeem or sell its equity interests or any other securities, (C) merge or consolidate with any Person, (D) consummate any complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization or (E) amend, modify, change or otherwise alter the terms of its equity interests or any other of its securities (including the Management Holdings Management Units), except in each case, as expressly contemplated hereby or in connection with and to facilitate the consummation of the Transactions in accordance with, and as contemplated by, the terms of this Agreement and in consultation with the Acquiror. Except as otherwise contemplated by this Agreement, as required by applicable Law Law, or as specifically set forth on Schedule 7.1 of the Transferor Parties Disclosure Schedule, and without limiting the generality of the foregoing, the Transferor shall not and the Transferor shall not permit any of the Transferred Companies to, take any of the following actions, prior to the earlier of the Closing and the termination of this Agreement pursuant to any COVID-19 Measures applicable to its terms, without the Company and its Subsidiaries or as consented to by RMG II in writing prior written consent of the Acquiror (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:delayed):
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries except (i) in the case of the Company, for any such change or amendment made in the ordinary course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declareDeclare, set aside aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in of any of the Company ISI Interests or its Subsidiaries, (ii) effect repurchase, redeem, repay or otherwise acquire any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional outstanding shares of their capital stock or securities convertible into or exchangeable for shares of their any capital stock, membership interests or issueother securities of the Transferred Companies; provided that the Transferor may declare, sellset aside, transfermake or pay dividends or other distributions in respect of Taxes to the extent of any Taxes payable by the Transferor (or its beneficial owners) in an aggregate amount equal to the sum of (x) the product of (1) the taxable income of the Transferor allocable to the period beginning on January 1, 2014 and ending on the Closing Date, multiplied by (2) the Assumed Tax Rate plus (y) the amount of any New York City Unincorporated Business Tax incurred by the Transferor for the period beginning on January 1, 2014 and ending on the Closing Date; provided, further, that the Transferred Companies may, immediately prior to the Closing, declare, set aside, make or pay dividends or other distributions in the amount up to the Excess Working Capital Distribution;
(i) Issue, sell or pledge, encumber or grant any rightauthorize or propose the issuance, option sale or other commitment for the issuance of shares of their capital stockpledge of, or (ii) split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect class or any securities or any type of membership interests of the Transferred Companies, including any Indebtedness secured by Company Ordinary Stock held by the SS Group) securities convertible into or (iv) repurchase, redeem exchangeable or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any exercisable for shares of their capital stock or membership or other equity interests, or any rights, warrants or options to acquire any such shares or such membership or other equity interests, or other securities, of any of the Transferred Companies;
(c) except as otherwise permitted Amend the Organizational Documents of any Transferred Company or, to the extent it could adversely affect the Transactions, the Transferor, or not restricted by this Section 8.01 enter into, assumeadopt or effect a plan of consolidation, assignmerger, partially share exchange, reorganization or completely amend similar business combination, or modify complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization with respect to or involving any material term of Transferred Company or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a)the Transferor;
(d) Purchase, sell, transfer, lease, pledge exchange or otherwise encumber, abandon, cancel or convey or dispose of or acquire any material property or assets, properties including any Intellectual Property (other than in the ordinary course of business) or business enter into any lease of real property for which the Company aggregate consideration paid or payable in any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not individual transaction is in excess of $5,000,000 50,000 or in the aggregate, (ii) in respect of any power generating assets, with a capacity not aggregate in excess of 500 megawatts$250,000 or with respect to sales, other than for fair value;
(iiie) Make any capital expenditure (other than capital expenditures (i) contemplated by any Contract to which any Transferred Company is a party that is in effect as between of the Company date hereof and its Subsidiaries, (iv) in relation disclosed to the Company’s Subsidiaries, Acquiror or as provided in the Management Projections;
(f) Enter into any Intellectual Property Contract or any other Contract with respect to Intellectual Property other than in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of businesspractices;
(eg) except as Grant, amend, waive, sell, assign, transfer, let lapse, abandon, cancel or otherwise required by Law or existing dispose of any Owned Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000Intellectual Property, except in the ordinary course of business consistent with past practice practices;
(iih) Except as required pursuant to a Transferor Plan existing as of the date hereof and set forth on Schedule 7.1(h) of the Transferor Parties Disclosure Schedule, or as otherwise required by applicable Law, (A) increase the compensation, commission, remuneration payable, bonus, pension, retirement, welfare, fringe or other benefits, change in control, retention, severance or termination pay of any of the current or former directors, officers, employees or consultants of any Transferred Company, (B) pay any bonus to any of the current or former directors, officers, employees or consultants of any Transferred Company, other than in accordance with the Management Projections, (C) adopt, enter into into, establish, amend or materially modify, or terminate any Transferor Plan or any employment, consulting, collective bargaining, bonus or other incentive compensation, health or other welfare, pension, retirement, severance, deferred compensation or other compensation or benefit plan with, for or in respect of any shareholder, director, officer, other employee or consultant that would constitute a Transferor Plan had it been in effect as of the date of this Agreement, (D) promote any employee who is an officer to a position more senior than such employee’s position as of the date of this Agreement, or promote a non-officer employee to an officer position, (E) grant any new awards under any Transferor Plan, (F) amend or modify any Company Benefit outstanding award under any Transferor Plan, (G) take any action to amend, waive or accelerate the vesting criteria or vesting requirements of payment of any compensation or benefit under any Transferor Plan or remove any existing restrictions in any Transferor Plans or awards made thereunder, (H) take any action to accelerate the payment, or to fund or in any other way secure the payment, of compensation or benefits under any Transferor Plan, to the extent not already provided in any such Transferor Plan, (I) change any actuarial or other assumptions used to calculate funding obligations with respect to any Transferor Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or U.K. GAAP, or (J) forgive any loans, or issue any loans (other than routine business expense advances issued in the ordinary course of business), to directors, officers, contractors or employees of any Transferred Company;
(i) Hire any employee or engage any independent contractor (who is a natural person) other than as disclosed in Schedule 7.1(i) of the Transferor Parties Disclosure Schedule or agree to or grant to any such employee or independent contractor compensation and benefits, in each case, in a manner that is inconsistent with the pre-Closing employment and compensation budget previously provided by the Transferred Companies to the Acquiror;
(j) Issue any communication to any employees of the Transferred Companies regarding any compensation or benefits to be provided after the Closing unless such communications are consistent with communications and/or materials developed in consultation with the Acquiror or Parent or otherwise required by Law;
(k) Modify or rescind any of the Licenses and Permits, except as required by Law;
(l) Incur any financial Indebtedness (other than current trade accounts payables incurred in respect of property or services purchased in the ordinary course of business and letters of credit issued in the ordinary course of business) or assume, grant, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person or make any loans or advances (other than, in each case, in the ordinary course of business), for individual amounts in excess of $25,000 or in the aggregate in excess of $200,000;
(m) Except as required by GAAP or U.K. GAAP, make any material change in any method of accounting;
(n) Enter into any new line of business;
(o) Settle any Action involving an amount in excess of $50,000 or the imposition of non-de minimis injunctive relief against the Transferred Companies;
(p) Make, amend, or revoke any material election relating to Taxes; adopt or change any material accounting method relating to Taxes; file any amended material Tax Return; enter into any Tax sharing, Tax allocation, Tax indemnity or similar agreement; enter into any closing agreement; surrender any right to claim a refund of Taxes; settle or compromise any material claim or assessment relating to Taxes; take any action with respect to annual renewals, Taxes which is reasonably likely to result in a material increase in the Tax liability of the Transferred Companies for any taxable period (iiior portion thereof) grant or provide ending after the Signing Date;
(q) Cancel any material bonusIndebtedness (individually or in the aggregate) or waive any claims or rights of material value, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) other than in the ordinary course of business consistent with past practice, practices or as permitted pursuant to clause (ivo) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practiceabove;
(fr) (i) fail to maintain its existence, (ii) enter into a new material line of business (other than the electricity transmission and distribution and wind and solar manufacturing businesses), (iii) purchase or otherwise acquire (whether Acquire by merging or consolidating with with, or by purchasing any equity interest in or a substantial portion of the assets of) , or by any other manner, any business or any corporation, partnership, association, joint venture association or other business organization or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practicethereof; or
(qs) authorize Agree, whether or commit or agree not in writing, to do any action prohibited under this Section 8.01of the foregoing.
Appears in 1 contract
Samples: Contribution and Exchange Agreement (Evercore Partners Inc.)
Conduct of Business. From the date of this Agreement until hereof through the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”)Closing, the Company shall, shall carry on the operation of the Business in the Ordinary Course and shall cause its Subsidiaries to, except as expressly contemplated by will use commercially reasonable efforts not to take any action inconsistent with this Agreement. Except as contemplated hereby or as may be incidental to or in furtherance of the transactions contemplated hereby or as may have been set forth herein or in the disclosure Schedules hereto, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct maintain the present character and operate its business in quality of the ordinary course consistent with past practiceBusiness, including to preserve the goodwill its present operations, physical facilities, working conditions, and present business relationships (contractual or otherwise) with its lessors, licensors, suppliers, customers, supplierspartners (including, without limitation, joint venture partners, distributors syndication partners and creditors and others having material business relationships with it and retain its current officers and other key employees and (iistrategic partners) comply in all material respects with all Laws applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, unless consented to by Parent in writing, the Company, except as expressly specifically contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit EAgreement, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking such actions as may be reasonably required by the Company to release or otherwise discharge any guarantee or other credit support granted by the Company or any Subsidiary in respect of any Indebtedness incurred by the SS Group or to comply with the obligations of the Company, its Subsidiaries or the SS Group in respect of such Indebtedness), as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change incur any indebtedness for borrowed or amend the certificate purchase money or letters of incorporationcredit, bylaws or assume, guarantee, endorse (other organizational documents of the Company than endorsements for deposit or any of its Subsidiaries except (i) collection in the case Ordinary Course of the CompanyBusiness), or otherwise become responsible for obligations of any such change or amendment made other Person except in the ordinary course Ordinary Course of business and which will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this AgreementBusiness;
(b) except in the ordinary course of business in relation issue or redeem any securities other than pursuant to the Company’s Subsidiaries (i) make, declare, set aside exercise of Company Options or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any Warrants outstanding as of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interestsdate hereof;
(c) except as otherwise permitted make or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify incur any material term of or terminate (excluding obligation to make any expiration in accordance with distribution to its terms) any Contract of a type required to be listed on Schedule 4.13(a)Stockholders;
(d) sell, transfer, lease, pledge make any change to its Certificate of Incorporation or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or Bylaws other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation than pursuant to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of businessSection 2.5;
(e) except as mortgage, pledge or otherwise required by Law encumber any of its assets or existing Company Benefit Planssell, policies transfer or Contracts otherwise dispose of the Company or any of its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, assets except in the ordinary course Ordinary Course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits to any employee or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services to the Company or any of its Subsidiaries, other than any employee with annual base compensation of less than $1,000,000 in the ordinary course of business consistent with past practiceBusiness;
(f) (i) fail make any investment of a capital nature either by purchase of stock or securities, contributions to maintain its existencecapital, (ii) enter into a new material line property transfer or otherwise, or by the purchase of business (any property or assets of any other than the electricity transmission and distribution and wind and solar manufacturing businesses)Person, (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or a substantial portion of the assets of) any business or any corporation, partnership, association, joint venture or other business organization or division thereof (other than except in the ordinary course Ordinary Course of business in relation to the Company’s Subsidiaries), Business;
(iv) make any acquisition of any assets, business, equity interests or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), or (vig) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger)) or otherwise permit its corporate existence to be suspended, lapsed or revoked;
(gh) make any capital expenditures (sell, lease, license, transfer or commitment to make any capital expenditures) otherwise dispose of assets of the Company in excess of $1,000,000 (individually for 25,000 in any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (single transaction or series of related capital expendituretransactions;
(i) approved under the Shareholders’ Agreement terminate any Material Contract or make any change in any Material Contract which is consistent will result in all material respects an aggregate value, cost or amount in excess of $25,000;
(j) make any change in any method of accounting or accounting practice except as required by GAAP or Applicable Law;
(k) enter into, modify or amend any employment agreement or arrangement with, or grant any bonuses, salary increase, or retention pay to, any officer, director, consultant or key employee, other than (x) in connection with the Company’s annual capital expenditure budget for the periods following promotions or other changes in positions or responsibilities of employees that do not involve an increase in compensation, severance or benefits; or (y) as may be required by Applicable Law or any Benefit Plan as in effect on the date hereof;
(hl) make modify, amend or terminate any loans, advances Benefit Plan or capital contributions to, or investments in, increase the benefits provided under any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its SubsidiariesBenefit Plan except as required by Applicable Law;
(im) amend in a manner enter into, renew on materially detrimental different terms or agree to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiariesenter into, or otherwise terminate its relationships with renew on materially different terms, any Governmental Authorityemployee welfare, customerspension, suppliersretirement, contractors and other Persons with which it has material business relationsprofit-sharing or similar plan, program, agreement, policy or arrangement except as required by Applicable Law;
(jn) except, in relation enter into any new or renew any other Material Contract with respect to the Company’s SubsidiariesBusiness which has an aggregate value, cost or amount in the ordinary course excess of business, or as required by applicable Law$50,000;
(o) file any amended returns with respect to Taxes, make or change any election in respect of material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax ReturnTaxes, enter into any agreement with a Governmental Authority with respect to Taxesclosing agreement, settle or compromise any claim or assessment in respect of material Taxes, or consent to any extension or waiver of the statutory limitation period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in make any prepayments with respect to, or advance any funds under, any agreement or arrangement to which the Company is a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) party other than in the ordinary course Ordinary Course of business consistent with past practiceBusiness;
(q) make any individual cash payment in excess of $10,000, other than payments made in the Ordinary Course of Business (including, without limitation, payments for Taxes due and payments to the Company’s suppliers); or
(qr) authorize make any payments, or commit incur an obligation to make any payments, in respect of, or agree to do pursue, settle or resolve, any action prohibited under this Section 8.01Unaccrued Litigation and Consumer Complaints, in excess of an aggregate of $45,000.
Appears in 1 contract
Samples: Merger Agreement (Improvenet Inc)
Conduct of Business. From The Company will do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence in good standing and the rights, licenses, permits, privileges and franchises material to the conduct of its business. Payment of Obligations. The Company will pay its Indebtedness and other obligations, including Tax liabilities, before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the Company has set aside on its books adequate reserves with respect thereto in accordance with GAAP, (c) such contest effectively suspends collection of the contested obligation and the enforcement of any Lien securing such obligation, and (d) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect. Maintenance of Properties. The Company will keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted. Insurance. The Company will maintain with financially sound and reputable insurance companies, insurance in such amounts and against such risks (including fire and other risks insured by extended coverage) as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations, including public liability insurance against claims for personal injury, death or property damage occurring upon, about or in connection with the use of any properties owned, occupied or controlled by it as well as such other insurance as may be required by law. Compliance with Laws. The Company will comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. SEC Disclosures. Each report, schedule, registration statement and definitive proxy statement filed by the Company with the SEC from and after the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable Law or pursuant to any COVID-19 Measures applicable to the Company and its Subsidiaries or as consented to by RMG II in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to (i) conduct and operate its business in the ordinary course consistent with past practice, including to preserve the goodwill and present business relationships (contractual or otherwise) with its customers, suppliers, joint venture partners, distributors and creditors and others having material business relationships with it and retain its current officers and other key employees and (ii) will comply in all material respects with all Laws the requirements of the Exchange Act and/or the Act as applicable to it and its Subsidiaries and their respective businesses, assets and employees. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement (including the amendment of the terms of the CCPS substantially in the form set out in Exhibit E, the conversion of any CCPS in accordance with their terms, or entering into such documents and instruments and taking none of such actions documents will, when filed, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company shall comply with all SEC filing requirements to which it is subject. Regulation Y. At least 90 days prior to engaging in any new activity or performing any new service, including any new activity as may be reasonably required by defined in Regulation Y, the Company will notify the Purchasers in writing. The Xxxxxxx Xxxxxx Corporation or any other Purchaser subject to release or otherwise discharge any guarantee or other credit support granted by the Bank Act and the Company agree to provide all reasonable assistance necessary to enable The Xxxxxxx Xxxxxx Corporation or any Subsidiary in respect of any Indebtedness incurred by such other Purchaser, on the SS Group or to comply with the obligations of one hand, and the Company, its Subsidiaries on the other hand, to have such new activity or service approved as one permitted to be performed by The Xxxxxxx Xxxxxx Corporation or such other Purchaser or the SS Group in respect of such Indebtedness)Company, as required the case may be, under the Bank Act and Regulation Y, provided that the foregoing covenant shall not apply at any time in which the deemed holdings in the Company's voting securities (including any outstanding warrants) by applicable Law The Xxxxxxx Xxxxxx Corporation or pursuant to any COVID-19 Measures applicable other Purchaser subject to the Company and its Subsidiaries or as consented to by RMG II in writing Bank Act are less than five percent (which consent shall not be unreasonably conditioned, withheld, delayed or denied), 5%) of the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents total outstanding voting securities of the Company or any of its Subsidiaries except (i) in as measured under the case of the Company, for any such change or amendment made in the ordinary course of business and which Bank Act). Certain Purchase Rights. The Company will not have an material adverse impact on the Company’s ability to perform its obligations under this Agreement or to consummate the Transactions, (ii) in the case of the Company’s Subsidiaries, for any such change or amendment made in the ordinary course of business or (iii) as expressly contemplated by this Agreement;
(b) except in the ordinary course of business in relation to the Company’s Subsidiaries (i) make, declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any capital stock or other equity interests in any of the Company or its Subsidiaries, (ii) effect any recapitalization, reclassification, split or other change in their capitalization, (iii) authorize for issuance, issue, sell, transfer (other than transfers of Company Stock held by former employees of the Company or its Subsidiaries to existing employees), pledge, encumber, dispose of or deliver any additional shares of their capital stock or securities convertible into or exchangeable for shares of their capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of their capital stock, or split, combine or reclassify any shares of their capital stock (except in each case in relation to the repayment, prepayment or refinancing of or the enforcement of any security in respect of any Indebtedness secured by Company Ordinary Stock held by the SS Group) or (iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any shares of their capital stock or other equity interests;
(c) except as otherwise permitted or not restricted by this Section 8.01 enter into, assume, assign, partially or completely amend or modify any material term of or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Schedule 4.13(a);
(d) sell, transfer, lease, pledge or otherwise encumber, abandon, cancel or convey or dispose of any assets, properties or business of the Company or any of its Subsidiaries, including Real Property, except for sales, transfers, leases, pledges or other encumbrances or dispositions of assets, properties or business (i) not in excess of $5,000,000 in the aggregate, (ii) in respect of any power generating assets, with a capacity not in excess of 500 megawatts, (iii) as between the Company and its Subsidiaries, (iv) in relation to the Company’s Subsidiaries, in the ordinary course of business and consistent with past practice or (v) the creation of any pledge, encumbrance or other security interest over any land, property or assets of Subsidiaries or the Company to secure Indebtedness incurred by the Company or its Subsidiaries in the ordinary course of business;
(e) except as otherwise required by Law or existing Company Benefit Plans, policies or Contracts of the Company or its Subsidiaries, in effect on the date of this Agreement, (i) grant any material increase in compensation, benefits or severance to any key employee or manager of the Company or its Subsidiaries with annual base compensation of more than $150,000, except in the ordinary course of business consistent with past practice (ii) adopt, enter into or materially amend any Company Benefit Plan other than in the ordinary course of business with respect to annual renewals, (iii) grant or provide any material bonus, severance or termination payments or benefits issue to any employee of or director of the Company or its Subsidiaries, except in connection with the promotion, hiring or firing of any employee (to the extent permitted by clause (iv) of this paragraph) in the ordinary course of business consistent with past practice, or (iv) hire any employee of the Company or any of its Subsidiaries, or any other individual who is providing or will provide services consultant to the Company or any of its SubsidiariesAffiliates, or to any third party, any options (but not including shares of Common Stock issuable under the Company's 1999 Employee Stock Purchase Plan), warrants or other similar rights to purchase securities of the Company ("Purchase Rights") with an exercise or purchase price less than the market price of the Common Stock at the time of the grant or issuance of such Purchase Rights, without the approval of the Majority Purchasers. The Company shall take all actions necessary or appropriate to assure that it will not grant or issue during any calendar year Purchase Rights (other than the Schwab Warrants) to acquire in excess of the lesser of (a) 4.0% of its average number of shares of Common Stock outstanding during such calendar year, (b) 4.5 million shares of its Common Stock (as appropriately adjusted for stock splits, stock dividends, combinations and other recapitalizations of the Company's share capital) or (c) the number of shares of Common Stock that can be acquired upon the conversion or exchange of Purchase Rights which are approved by the Company's Board of Directors during such calendar year. The Company will not reprice any employee with annual base compensation of its outstanding Purchase Rights or exchange any new Purchase Rights for currently outstanding Purchase Rights without prior stockholder approval. The provisions of this Section 6.08 shall cease to apply if collectively the Purchasers and their Affiliates at any time own less than $1,000,000 five percent of the outstanding Common Stock. Use of Proceeds. The Company will use the proceeds from the sale of the Shares for general working purposes and the furtherance of the Company's business plan, including enhancing the Company's marketing capabilities. Subsequent Equity Offerings. Until the third anniversary of the Closing Date, the Company will notify the Purchasers of any proposed offer or sale of any of its equity securities or any securities convertible or exchangeable into its equity securities (the "New Equity Securities") prior to the final sale of the Equity Securities. The Company in good faith will consider offering any of the ordinary course Purchasers, which express an interest, an opportunity to participate in any such offering or sale. This Section 6.10 shall not apply to any offers or sales of business consistent Equity Securities in connection with past practice;
(fa) a loan from a commercial bank; (b) any issuance of securities (i) fail to maintain its existenceas consideration in a merger or consolidation, (ii) enter into a new material line in connection with any strategic partnership or joint venture (the primary purpose of business (other than the electricity transmission and distribution and wind and solar manufacturing businesseswhich is not to raise equity capital), (iii) purchase or otherwise acquire (whether by merging or consolidating with or purchasing any equity interest in or as consideration for the acquisition of a substantial portion of the assets of) any business or any corporationbusiness, partnershipproduct, association, joint venture license or other business organization asset by the Company or division thereof (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (iv) make any acquisition equipment finance leasing; (c) the issuance of any assetssecurities upon exercise or conversion of the Company's options, business, equity interests warrants or other properties or incur any liability or obligation in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than in the ordinary course of business in relation to the Company’s Subsidiaries), (v) sell, transfer, license, assign, fail to maintain or otherwise dispose of or encumber any of the material assets or material Intellectual Property pertaining to the business of the Company or any of its Subsidiaries with a value in excess of $1,000,000 (other than in the ordinary course of business), convertible securities; or (vid) adopt or enter into a plan the grant of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization additional Purchase Rights in compliance with Section 6.08 of the Company or any of its Subsidiaries (other than the Merger);
(g) make any capital expenditures (or commitment to make any capital expenditures) in excess of $1,000,000 (individually for any project (or set of related projects) or $5,000,000 in the aggregate) other than any capital expenditure (or series of related capital expenditure) approved under the Shareholders’ Agreement or which is consistent in all material respects with the Company’s annual capital expenditure budget for the periods following the date hereof;
(h) make any loans, advances or capital contributions to, or investments in, any other Person, other than, in relation to the Company’s Subsidiaries, in the ordinary course of business consistent with past practice or between the Company and its Subsidiaries;
(i) amend in a manner materially detrimental to the Company or any of its Subsidiaries, terminate, cancel, surrender, permit to lapse or fail to renew or maintain any material authorization from a Governmental Authority or material Permit required for the conduct of the business of the Company or any of its Subsidiaries, or otherwise terminate its relationships with any Governmental Authority, customers, suppliers, contractors and other Persons with which it has material business relations;
(j) except, in relation to the Company’s Subsidiaries, in the ordinary course of business, or as required by applicable Law, make or change any material Tax election or adopt or change any material Tax accounting method, file any material amendment to any income Tax Return or other material Tax Return, enter into any agreement with a Governmental Authority with respect to Taxes, settle or compromise any claim or assessment in respect of material Taxes, consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of a material amount of Taxes, or enter into any Tax sharing or similar agreement, in each case if such election, change, amendment, agreement, settlement, consent or other action could, individually or in the aggregate, reasonably be expected to have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax asset of PubCo and its Affiliates (including the Company and its Subsidiaries) after the Closing;
(k) enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business, or enter into any agreement that restricts the ability of the Company or any of its Subsidiaries to enter into a new line of business;
(l) waive, release, compromise, settle or satisfy any pending or threatened Action or compromise or settle any liability or commence any Action, other than in the ordinary course of business or that otherwise do not exceed $10,000,000 in the aggregate;
(m) (i) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any material Indebtedness, other than Indebtedness incurred in the ordinary course of business (which for the avoidance of doubt, includes any refinancing or issuance of debt securities) or (ii) except in the ordinary course of business, amend, restate or modify any terms of or any agreement with respect to any outstanding material Indebtedness;
(n) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any of its Subsidiaries, except insofar as may have been required by a change in Law, IFRS or GAAP;
(o) fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage maintained with respect to the Company or any of its Subsidiaries or their assets or properties as of the date hereof;
(p) fail in a material manner to manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice; or
(q) authorize or commit or agree to do any action prohibited under this Section 8.01.Agreement. Maintenance on Nasdaq
Appears in 1 contract
