Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing. (b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to: (i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor; (ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests; (iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries; (iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary; (v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases; (vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof; (vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2); (viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries; (ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms; (x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan; (xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business; (xii) enter into any Seller Material Contract other than as contemplated by Section 6.7; (xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000; (xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing; (xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area; (xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects; (xvii) open or reopen any major production facility; and (xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 9 contracts
Samples: Master Sale and Purchase Agreement, Master Sale and Purchase Agreement, Master Sale and Purchase Agreement
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after From the date of this Agreement and until the earlier of through the Closing and the termination of Date, except as Phoenix may otherwise approve (which approval shall not be unreasonably withheld) or as otherwise expressly provided by this Agreement, Sellers shall the Company shall, and shall cause each Purchased Subsidiary to of its Subsidiaries to, (Ai) conduct their operations businesses in the Ordinary Course of Businessordinary course in accordance with past practice, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (Cii) use commercially reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with intact their respective customersbusiness organizations and goodwill and assets, suppliers (iii) use commercially reasonable efforts to keep available the services provided by their respective present officers and key employees, (iv) use their commercially reasonable efforts to maintain satisfactory relationships with others having significant business dealings relationships with them, (D) not take any action to cause the Company and any of Sellers’ representations its Subsidiaries, and warranties set forth in ARTICLE IV to be untrue in any material respect as (v) observe and perform all of its obligations and comply with all terms and provisions of any such date when such representation or warranty and all leases, licenses and other agreements to which it is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closinga party.
(b) Subject Except as described in Schedule 6.1(b) or as expressly provided by this Agreement, or to the exceptions contained extent Phoenix otherwise consents in clauses (i) through (iv) of Section 6.2(a)writing, each Seller agrees that, during the period from and after the date of this Agreement and until the earlier of to the Closing and the termination of this Agreement, without the prior written consent of Purchaser Date (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller the Company shall not, and shall not cause or permit any of the Key Subsidiaries (and in the case of clauses (i)its Subsidiaries, (ix), (xiii) to directly or (xvi), shall not permit any Purchased Subsidiary) to:
indirectly (i) take incur indebtedness for borrowed money, other than under the terms of the Credit Agreement, (ii) grant any action with respect Encumbrances on its assets, (iii) enter into any Material Contract or terminate or amend any Material Contract to which any Seller has granted approval rights to Sponsor under such Person becomes or is a party or transfer or license any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted EncumbranceCompany Intellectual Property, in each case, except other than in the Ordinary Course ordinary course of Business or pursuant to a Contract business consistent with past practice, (iv) dispose of any assets of any such Person, (v) other than issuances of additional shares of Series A-1 Preferred Stock in existence connection with the payment of accrued dividends on shares of Series A-1 Preferred Stock outstanding as of the date hereof, make any distribution in respect of the equity securities of or other ownership interest in such Person, (vi) make or revoke any election under the Code, (vii) other than (a) the issuance of secured promissory notes under the terms of the Credit Agreement, (B) the issuance of additional warrants to purchase Common Stock in connection with the payment of accrued interest through the issuance of additional secured promissory notes under the terms of the Credit Agreement, or (C) the issuance of additional shares of Series A-1 Preferred Stock in connection with the payment of accrued dividends on shares of Series A-1 Preferred Stock outstanding as of the date hereof, authorize, issue, or agree or otherwise commit to authorize or issue, any shares of stock of any class, or any bonds, debentures or notes, or any securities convertible into, exchangeable for or having option rights to purchase any shares of capital stock of the Company securities other than pursuant to the exercise of options or warrants or the conversion of Series A-1 Preferred Stock, in each case, outstanding on the date hereof (or entered into in compliance with this Section 6.2);
pursuant to their terms, (viii) (A) incur amend its Charter Documents or assume any Indebtedness for borrowed money or issue any debt securitiescomparable governance documents, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy make any Indebtedness capital expenditure in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
100,000, (x) other than as is required by decrease the terms amount of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsorinsurance coverage, (Axi) make any alteration to its business plan, (xii) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel)its employees, (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by mergerwaive, consolidationcompromise, combination or acquisition of Equity Interests settle any claim, or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete voluntarily incur any liability or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization obligation in excess of $50,000 individually or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, $250,000 in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsaggregate.
Appears in 6 contracts
Samples: Exchange Agreement (Phoenix Venture Fund LLC), Series B Preferred Stock Purchase Agreement (Phoenix Venture Fund LLC), Series B Preferred Stock Purchase Agreement (Phoenix Venture Fund LLC)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including During the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and continuing until the earlier of the Closing and the termination of this AgreementAgreement pursuant to its terms or the Effective Time, Sellers the Company (which for the purposes of this Article IV shall and shall cause each Purchased Subsidiary to (A) conduct their operations in include the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers Company and each of their Subsidiaries with their respective customersits subsidiaries) and Parent (which for the purposes of this Article IV shall include Parent and each of its subsidiaries) agree, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses except (i) through as required by this Agreement, (ivii) of Section 6.2(a), each Seller agrees that, from and after in the date of this Agreement and until the earlier case of the Closing Company as provided in Article IV of the Company Schedules and in the termination case of Parent as provided in Article IV of the Parent Schedules, or (iii) to the extent that the other party shall otherwise consent (which consent shall not be unreasonably withheld or delayed with regard to actions that would be reasonably necessary to carry on the business of Parent or Company, as applicable, in the ordinary course, as a standalone entity if the Merger were not consummated) in writing, to carry on its business in the ordinary course, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, 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 subject to good faith disputes over such obligations, and use its commercially reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep 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 addition, except (i) in the case of the Company as provided in Article IV of the Company Schedules, (ii) in the case of Parent as provided in Article IV of the Parent Schedules, or (iii) as required by this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheldwithheld or delayed with regard to actions that would be reasonably necessary carry on the business of Parent or Company, conditioned or delayed)as applicable, such Seller in the ordinary course, as a standalone entity if the Merger were not consummated) of the other, neither the Company nor Parent shall not, and shall not permit do any of the Key Subsidiaries (following, and in neither the case Company nor Parent shall permit its subsidiaries to do any of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tothe following:
(ia) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or Except as required by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business law or pursuant to the terms of a Contract Company Plan or a Parent Plan, as the case may be, in existence effect as of the date hereof (hereof, waive any stock repurchase rights, accelerate, amend or entered into change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant or director stock plans or authorize cash payments in compliance with this Section 6.2)exchange for any options granted under any of such plans;
(viiib) (A) incur Enter into any material partnership arrangements, joint development agreements or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines strategic alliances other than in the ordinary course of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiariesbusiness consistent with past practice;
(ixc) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant Grant any severance or termination pay to any Employee officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing to the other, or adopt any new severance plan or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of Sellers any capital stock (other than distributions from a subsidiary (i) of Company to Company or any Purchased Subsidiary except for severance or termination pay provided under any (ii) of Parent Employee Benefit Plan and Policy or to Parent as the result of a settlement case may be) or split, combine or reclassify any capital stock or issue or authorize the issuance of any pending Claim other securities in respect of, in lieu of or charge involving a Governmental Authority in substitution for any capital stock;
(e) Purchase, redeem or litigation otherwise acquire, directly or indirectly, any shares of capital stock of the Company or its subsidiaries, or Parent or its subsidiaries, as the case may be, except repurchases of unvested shares at cost in connection with respect the termination of the employment relationship with any employee pursuant to Employees who are not current stock option or former officers purchase agreements in effect on the date hereof;
(f) Issue, deliver, sell, authorize, pledge or directors otherwise encumber or propose any of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations the foregoing with respect to any Benefit Plan shares of capital stock or any change securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to the manner in which contributions 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 any Benefit Plan are made or the basis on which such contributions are determined), except where issue any such action would reduce Sellers’ costs shares or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Businessconvertible securities, other than Employees who are current (i) the issuance, delivery and/or sale of shares of Company Common Stock or former officers Parent Common Stock, as the case may be, pursuant to the exercise of stock options therefor outstanding as of the date of this Agreement, (ii) the granting of options to purchase shares of Company Common Stock or directors Parent Common Stock, as the case may be, to be granted at fair market value in the ordinary course of Sellers business, consistent with past practice and in accordance with existing stock option plans in an amount not to exceed options to purchase 500,000 shares in the aggregate, (iii) shares of Company Common Stock or Seller Key Personnel Parent Common Stock, as the case may be, issuable upon the exercise of the options referred to in clause (ii), and (iv) shares of Company Common Stock or directors of Sellers Parent Common Stock, as the case may be, issuable to participants in the Parent ESPP or a Purchased Subsidiary) or (G) exercise any discretion to accelerate Company ESPP consistent with the time of payment or vesting of any compensation or benefits under any Benefit Planterms thereof;
(xig) modifyCause, amend, terminate permit or waive propose any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse amendments to any Seller that is 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 party theretomaterial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or enter into any joint ventures, strategic partnerships or alliances, other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(xiii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition Adopt a plan of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization recapitalization or other reorganization;
(j) Sell, lease, license, encumber or otherwise dispose of any properties or assets except sales of inventory in the ordinary course of business consistent with past practice, except for the sale, lease or disposition (other than through licensing) of property or assets which are not material, individually or in the aggregate, to the business of the Company or Parent, as the case may be;
(k) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other mannerrights to acquire any debt securities of the Company or Parent, as the legal structure case may be, enter into any "keep well" or ownership other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoingforegoing other than (i) in connection with the financing of ordinary course trade payables consistent with past practice or (ii) pursuant to existing credit facilities in the ordinary course of business;
(xvl) Adopt or amend any employee benefit plan or employee stock purchase or employee stock option plan, or enter into any Contract employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable "at will"), pay any special bonus or special remuneration to any director or employee other than in the ordinary course of business consistent with past practice, or increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants;
(m) Make any individual or series of related payments outside of the ordinary course of business in excess of $500,000;
(n) Revalue any of its assets or, except as required by GAAP, make any change in accounting methods, principles or practices;
(o) Engage in any action that limits or otherwise restricts or that would could reasonably be expected toto cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code whether or not otherwise permitted by the provisions of this Article IV;
(p) Make any tax election that individually or in the aggregate, after the Closing, restrict or limit is reasonably likely to adversely affect in any material respect (A) Purchaser the tax liability or any tax attributes of its Subsidiaries Company or any successor thereto or (B) any Affiliates of Purchaser or any successor theretoParent, in as the case of each of clause (A) may be, or (B), from engaging settle or competing in compromise any line of business or in any geographic areamaterial tax liability;
(xviq) enter into Pay, discharge, settle or satisfy any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;material litigation; or
(xviir) open or reopen any major production facility; and
(xviii) agree, Agree in writing or otherwise, otherwise to take any of the foregoing actionsactions described in Section 4.1 (a) through (q) above.
Appears in 5 contracts
Samples: Merger Agreement (HMT Technology Corp), Merger Agreement (HMT Technology Corp), Merger Agreement (Komag Inc /De/)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including During the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this ------------------- Agreement and continuing until the earlier of the Closing and the termination of this AgreementAgreement pursuant to its terms or the Effective Time, Sellers Target (which for the purposes of this Article IV shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers include Target and each of their Subsidiaries with their respective customersits subsidiaries) and Acquiror (which for the purposes of this Article IV shall include Acquiror and each of its subsidiaries) agree, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses except (i) through in the case of Target as provided in Article IV of the Target Schedules and in the case of Acquiror as provided in Article IV of the Acquiror Schedules, or (ivii) to the extent that the other of Section 6.2(a)them shall otherwise consent in writing, to carry on its business diligently and in accordance with good commercial practice and to carry on its business in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, 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 to use its commercially reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep 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 addition, each Seller agrees thatof Target and Acquiror will promptly notify the other of any material event involving its business or operations, from and after except where prohibited by applicable law or contracts existing as of the date of this Agreement; provided that Target or Acquiror, as the case may be, shall -------- use its best efforts to have such prohibition removed promptly following such material event. In addition, except as permitted by the terms of this Agreement and until except in the earlier case of Target as provided in Article IV of the Closing Target Schedules, and except in the termination case of this AgreementAcquiror as provided in Article IV of the Acquiror Schedules, without the prior written consent of Purchaser the other (which consent shall will not be unreasonably withheld, conditioned or delayed), such Seller neither Target nor Acquiror shall not, and shall not permit do any of the Key Subsidiaries (following, and in neither Target nor Acquiror shall permit its subsidiaries to do any of the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tofollowing:
(ia) take Waive any action with respect to which any Seller has stock repurchase rights, accelerate, amend or change the period of exercisability of options or restricted stock, or reprice options granted approval rights to Sponsor under any Contractemployee, including consultant or director stock plans or authorize cash payments in exchange for any options granted under the UST Credit Facilities, without obtaining the prior approval any of such action from Sponsorplans;
(iib) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant Grant any severance or termination pay to any Employee of Sellers officer, employee or consultant, except payments in amounts consistent with policies and past practices or pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing to the other, or adopt any Purchased Subsidiary except for new severance plan;
(c) Transfer or termination pay provided under license to any Parent Employee Benefit Plan and Policy person or as the result of a settlement of any pending Claim entity or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter intootherwise extend, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) modify in any material respect in a manner that is adverse any rights to any Seller that is a party theretothe Target IP Rights or the Acquiror IP Rights, as the case may be, or enter into grants to future patent rights, other than in the Ordinary Course ordinary course of Businessbusiness;
(xiid) enter into Declare or pay any Seller Material Contract dividends on or make any other than as contemplated by Section 6.7distributions (whether in cash, stock or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(xiiie) acquire (including by mergerRepurchase or otherwise acquire, consolidationdirectly or indirectly, combination any shares of capital stock, except pursuant to rights of repurchase of any such shares under any employee, consultant or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in director stock plan existing on the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000date hereof;
(xivf) alterIssue, whether through 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 (i) the issuance of shares of Target Common Stock or Acquiror Common Stock, as the case may be, pursuant to the exercise of stock options therefor outstanding as of the date of this Agreement, (ii) options to purchase shares of Target Common Stock or Acquiror Common Stock, as the case may be, to be granted at fair market value in the ordinary course of business, consistent with past practice and in accordance with stock option plans existing on the date hereof; provided, -------- however, that Target shall not, without the prior written consent of Acquiror, ------- issue options to purchase more than an aggregate of 100,000 shares of Target Common Stock, (iii) shares of Target Common Stock or Acquiror Common Stock, as the case may be, issuable upon the exercise of the options referred to in clause (ii), (iv) shares of Target Common Stock or Acquiror Common Stock, as the case may be, issuable to participants in the Target Employee Stock Purchase Plan or the Acquiror Employee Stock Purchase Plan, as the case may be, consistent with past practice and the terms thereof and (v) shares of the Target Common Stock, issuable pursuant to the Option Agreement;
(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 complete material portion of the assets of, or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in by any other manner, the legal structure any business or ownership of any Key Subsidiarycorporation, partnership interest, association or other business organization or division thereof, or adopt otherwise acquire or approve a plan with respect agree to acquire any assets which are material, individually or in the aggregate, to the business of Target or Acquiror, as the foregoingcase may be;
(xvi) Sell, lease, license, encumber or otherwise dispose of any properties or assets which are material, individually or in the aggregate, to the business of Target or Acquiror, as the case may be, except in the ordinary course of business consistent with past practice;
(j) Incur any indebtedness for borrowed money (other than ordinary course trade payables or pursuant to existing credit facilities in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire debt securities of Target or Acquiror, as the case may be, or guarantee any debt securities of others;
(k) Adopt or amend any employee benefit or employee stock purchase or employee option plan, or enter into any Contract that limits employment contract, pay any special bonus or otherwise restricts special remuneration to any director or that would reasonably be expected toemployee, after or increase the Closing, restrict salaries or limit in any material respect (A) Purchaser or any wage rates of its Subsidiaries officers or any successor thereto or (B) any Affiliates of Purchaser or any successor theretoemployees, in each case other than in the case ordinary course of each of clause business, consistent with past practice.
(Al) Pay, discharge or satisfy any claim, liability or obligation (Babsolute, accrued, asserted or unasserted, contingent or otherwise), from engaging other than the payment, discharge or competing satisfaction in the ordinary course of business;
(m) Make any grant of exclusive rights to any third party, other than in the ordinary course of business;
(n) Enter into any agreement, contract or commitment containing any covenant limiting its freedom to engage in any line of business or in compete with any geographic areaperson;
(xvio) Commence a lawsuit other than (i) for the routine collection of bills, (ii) in such cases where it in good faith determines that failure to commence suit would result in the material impairment of a valuable aspect of its business or material impairment or loss of a Target IP Right or a material asset, provided that it consults with the other prior to the filing -------- of such a suit, or (iii) for a breach or threatened breach of this Agreement;
(p) Other than in the ordinary course of business, make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes to the extent material to it or its subsidiaries, enter into any Contracts for capital expendituresmaterial closing agreement, exceeding $100,000,000 settle any material claim or assessment in respect of Taxes, or consent to any extension or waiver of the aggregate limitation period applicable to any material claim or assessment in connection with any single project or group respect of related projectsTaxes;
(xviiq) open Revalue any of its assets, including without limitation writing down the value of inventory or reopen any major production facility; andwriting off notes or accounts receivable other than in the ordinary course of business;
(xviiir) agreeEnter into any partnership arrangements, joint ventures, joint development agreements, strategic partnership or alliances, or other material contracts other than in the ordinary course of business consistent with past practice, or violate, amend or otherwise modify or waive any material contract, except, in the case of Acquiror or any of its subsidiaries, where such action described in this clause (r) would not have a Material Adverse Effect;
(s) Take any action that would be reasonably likely to interfere with Acquiror's ability to account for the Merger as a pooling of interests; or
(t) Intentionally take or agree in writing or otherwise, otherwise to take any of the foregoing actionsactions described in Article IV (a) through (s) above, or any action which would make any of its representations or warranties contained in this Agreement untrue or incorrect or prevent it from performing or cause it not to perform its covenants hereunder, except to the extent that such action would not be reasonably expected to result in a Material Adverse Effect with respect to such party or otherwise interfere with, delay or impede the consummation of the transactions contemplated hereby in any material respect.
Appears in 4 contracts
Samples: Merger Agreement (Pure Atria Corp), Agreement and Plan of Reorganization (Rational Software Corp), Agreement and Plan of Reorganization (Rational Software Corp)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including During the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and continuing until the earlier of the Closing and the termination of this AgreementAgreement pursuant to its terms or the Effective Time, Sellers Individual (which for the purposes of this Article 4 shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers include Individual and each of their Subsidiaries with their respective customersits subsidiaries) and Desktop (which for the purposes of this Article 4 shall include Desktop and each of its subsidiaries) agree, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses except (i) through in the case of Individual as provided in Article 4 of the Individual Disclosure Schedule and in the case of Desktop as provided in Article 4 of the Desktop Disclosure Schedule, or (ivii) to the extent that the other party shall otherwise consent in writing, to carry on its business diligently and in accordance with good commercial practice and to carry on its business in the usual, regular and ordinary course, in substantially the same 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 use its commercially reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of Section 6.2(a)its present officers and employees and preserve its relationships with customers, each Seller agrees thatsuppliers, from distributors, licensors, licensees, and others with which it has business dealings. In furtherance of the foregoing and subject to applicable law, Individual and Desktop agree to confer, as promptly as practicable, prior to taking any material actions or making any material management decisions with respect to the conduct of business. In particular, but without limiting the applicability of the foregoing sentence, Desktop and Individual shall use all reasonable efforts, within 30 days after the date of this Agreement hereof, to agree on (i) mutual capital expenditure budgets covering the period prior to the Effective Date and until the earlier (ii) an employee retention plan which will include provision for severance for any employees whose jobs may be terminated as a result of the Closing Merger. In addition, except in the case of Individual as provided in Article 4 of the Individual Disclosure Schedule and in the termination case of this AgreementDesktop as provided in Article 4 of the Desktop Disclosure Schedule, without the prior written consent of Purchaser (which consent the other, neither Individual nor Desktop shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit do any of the Key Subsidiaries (following, and in neither Individual nor Desktop shall permit its subsidiaries to do any of the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tofollowing:
(ia) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval amend or otherwise change its Certificate of such action from SponsorIncorporation or By- Laws;
(iib) issue, sell, pledge, create an Encumbrance or otherwise dispose of or encumber, or authorize the issuance, sale, pledge, Encumbrance disposition or disposition encumbrance of, any shares of capital stock of any Equity Interests of the Transferred Entitiesclass, or grant any options, warrants, convertible securities or other rights of 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 shares of common stock issuable pursuant to employee stock options under the Individual Employee Stock Option Plans, the Desktop Employee Stock Option Plans or the Warrants, as the case may be, or pursuant to rights to purchase shares under the Individual Employee Stock Purchase Plan and the Desktop Employee Stock Purchase Plan, as the case may be, which options, warrants or other rights rights, as the case may be, are outstanding on the date hereof); provided, however, that Desktop may continue to purchase grant options pursuant to the -------- ------- Desktop Stock Option Plans without the prior consent of Individual, in amounts not to exceed 1,500 shares per person, and Individual may continue to grant options pursuant to the Individual Stock Option Plans, without the prior written consent of Desktop, in amounts not to exceed 3,000 shares per person.
(c) sell, pledge, dispose of or obtain encumber any assets (including upon conversion, exchange except for (i) sales of assets in the ordinary course of business and in a manner consistent with past practice and (ii) dispositions of obsolete or exercise) any such Equity Interestsworthless assets);
(iiid) accelerate, amend or change the period (or permit any acceleration, amendment or change) of exercisability of options granted under the Individual Employee Plans or the Desktop Employee Plans (including the Individual Stock Option Plans, the Desktop Stock Option Plans, the Individual Employee Stock Purchase Plan and the Desktop Employee Stock Purchase Plan) or the Warrants or authorize cash payments in exchange for any options granted under any of such plans;
(i) declare, set aside aside, make or pay any dividend or make any other distribution (whether in cash, stock or property or any combination thereof) in respect of any of its capital stock, except that a wholly owned subsidiary may declare and pay a dividend to its parent, (ii) 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 its capital stock or (iii) amend the terms of, repurchase, redeem or otherwise acquire, or permit any subsidiary to repurchase, redeem or otherwise acquire, any of its securities or other property any securities of its subsidiaries, or by allocation propose to do any of additional Indebtedness to the foregoing;
(f) sell, transfer, license, sublicense or otherwise dispose of any Seller Individual IP Rights or Desktop IP Rights, as the case may be, or amend or modify any Key Subsidiary without receipt of fair value existing agreements with respect to any Equity Interest Individual IP Rights, Individual IP Rights Agreements, Desktop IP Rights or Desktop IP Rights Agreements, as the case may be, other than nonexclusive object and source code licenses in the ordinary course of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiariesbusiness consistent with past practice;
(ivi) directly acquire (by merger, consolidation, or indirectlyacquisition of stock or assets) any corporation, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions partnership or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation business organization or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
division thereof; (vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (Aii) incur or assume any Indebtedness indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility securities or (B) assume, guarantee, 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 liable or responsible (whether directlyfor, contingently or otherwise) for the obligations of any other Personperson, or make any loans or advances, except for Indebtedness for borrowed money among in the ordinary course of business consistent with past practice; (iii) enter into or amend any Seller and Subsidiary material contract or among agreement other than in the Subsidiaries;
ordinary course of business; (ixiv) discharge authorize any capital expenditures or satisfy any Indebtedness purchase of fixed assets which are, in the aggregate, in excess of $100,000,000 other than 100,000, 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 discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled termsmatters prohibited by this Section 4.01(g);
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (Ah) increase the compensation payable or benefits of any Employee of Sellers to become payable to its officers or any Purchased Subsidiary (employees, except for increases in salary or wages in the Ordinary Course of Business with respect to Employees employees who are not current officers in accordance with past practices, or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to to, or enter into any Employee of Sellers employment or severance agreement with any Purchased Subsidiary director, officer (except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees officers who are not current terminated on an involuntary basis) or former officers other employee, or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, into or amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Employee Plan;
(xii) modify, amend, terminate or waive take any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party theretoaction, other than in the Ordinary Course as required by GAAP, to change accounting policies or procedures (including, without limitation, procedures with respect to revenue recognition, capitalization of Businesssoftware development costs, payments of accounts payable and collection of accounts receivable);
(xiij) enter into make any Seller Material Contract other than as contemplated by Section 6.7material tax election inconsistent with past practices or settle or compromise any material federal, state, local or foreign tax liability or agree to an extension of a statute of limitations for any assessment of any tax, except to the extent the amount of any such settlement has been reserved for on its most recent SEC Report;
(xiiik) acquire pay, discharge or satisfy any claims, liabilities or obligations (including by mergerabsolute, consolidationaccrued, combination asserted or acquisition of Equity Interests unasserted, contingent or assets) any Person or business or division thereof (otherwise), other than acquisitions of portfolio assets and acquisitions the payment, discharge or satisfaction in the Ordinary Course ordinary course of Business) business and consistent with past practice of liabilities reflected or reserved against in a transaction (the financial statements of Individual or series Desktop, as the case may be, or incurred in the ordinary course of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000business and consistent with past practice;
(xiv1) alterexcept as may be required by law, whether through a complete take any action to terminate or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or amend any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate Employee Plans other than in connection with any single project or group of related projectsthe Merger;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 4 contracts
Samples: Merger Agreement (Individual Inc), Merger Agreement (Desktop Data Inc), Merger Agreement (Individual Inc)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from From and after the date of this Agreement hereof and until the earlier of the Closing and or the termination of this AgreementAgreement in accordance with Section 8.1 (the “Interim Period”), Sellers without limiting anything contained in Section 5.2(c), and unless otherwise agreed to in advance and in writing by Purchaser A (such agreement not to be unreasonably withheld) each of the Seller and the BComm Companies shall and shall cause each Purchased Subsidiary use (subject to (Aapplicable fiduciary duties under applicable Legal Requirements) conduct their operations its entire voting rights in the Ordinary Course of BusinessCompany and Bezeq, respectively (Bin case such matters are brought to a shareholders’ vote) so that the BComm Companies and Bezeq and its subsidiaries shall, not take take, do, effect or allow (or commit or agree to take, do, effect or allow) any action inconsistent with this Agreement or with the consummation of the Closing, Restricted Matters (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties except as set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (ESchedule 5.2(a) not take any action that would reasonably be expected to materially prevent or delay the Closinghereof).
(b) Subject to During the exceptions Interim Period, without limiting anything contained in clauses Section 5.2(c), the Company shall, and the Company shall cause the other BComm Companies to:
(i) through conduct its business in the ordinary course and in compliance with applicable Legal Requirements; and
(ivii) of Section 6.2(a)except as set forth in Schedule 5.2(b)(ii) hereof, each Seller agrees thatnot take, from and after the date of this Agreement and until the earlier do, effect or allow (or commit or agree to take, do, effect or allow) any of the Closing Restricted Matters, unless otherwise consented to in advance and in writing by Purchaser A (such consent not to be unreasonably withheld).
(c) Until the termination end of this Agreementthe Interim Period, without the prior written consent of Purchaser A (which such consent shall not to be unreasonably withheld, conditioned or delayed), such ) (i) the Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) directly or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issueindirectly, sell, pledgetransfer, create an Encumbrance convey, exchange, assign, gift, Encumber, or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller Purchased Shares or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller rights therein or any Key Subsidiary)thereto, except for dividends and distributions among (ii) the Purchased Subsidiaries;
(iv) Company shall not, directly or indirectly, purchasesell, redeem transfer, convey, exchange, assign, gift, Encumber, or otherwise acquire dispose of any Equity Interests of the Company Owned Securities or any rights therein or thereto, (iii) the Company shall cause SP1 not to acquire any Equity Interests of any Seller (and the Company shall be responsible if SP1 does), directly or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting incomeindirectly, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign convey, exchange, assign, gift, Encumber, or otherwise dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof SP2 Securities or the SP1 Bezeq Shares, and (iv) the Company shall cause SP2 not to (and the Company shall be responsible if SP2 does), directly or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securitiesindirectly, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assumesell, guaranteetransfer, endorse convey, exchange, assign, gift, Encumber, or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations dispose of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsSP2 Bezeq Shares.
Appears in 4 contracts
Samples: Share Purchase Agreement (Internet Gold Golden Lines LTD), Share Purchase Agreement (B Communications LTD), Share Purchase Agreement (Internet Gold Golden Lines LTD)
Conduct of Business. (a) Except as Each of the TEF Group and the PT Group agrees that, (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting TEF Covered Assets and PT Covered Assets, respectively, during the period from any changes to applicable Laws, from and after the date of this Agreement to the Balance Closing, and until (ii) in respect of a New Acquisition, from the earlier date on which the TEF Group or the PT Group (as the case may be) acquires, directly or indirectly (other than through the Company) an Interest in the New Acquisition, to the date of transfer to the Company of the Closing entire such Interest, except as otherwise contemplated by this Agreement or consented to by the other Group in writing:
(a) Each of the TEF Group and the termination of this AgreementPT Group shall use its best efforts to cause its Covered Assets, Sellers shall and shall cause each Purchased Subsidiary or New Acquisition (as the case may be), to (A) conduct their its business operations in the Ordinary Course of Business, (B) not take any action inconsistent ordinary course consistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.past practice;
(b) Subject to Unless previously and expressly agreed in writing by the exceptions contained Parties in clauses each specific event, each of TEF Group and the PT Group shall cause its Covered Assets or New Acquisition or subsidiary thereof (i) through (iv) of Section 6.2(aas the case may be), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take sell, dispose of or acquire any action with respect to which any Seller has granted approval material properties, assets or rights to Sponsor under any Contract, including under the UST Credit Facilities(including, without obtaining limitation, leaseholds), except in the prior approval ordinary course of such action from Sponsorbusiness, or to merge, consolidate or amalgamate any of the Covered Assets or New Acquisitions or their subsidiaries, either between them, or with any other Person;
(ii) issuemake any loans, sell, pledge, create an Encumbrance advances (other than advances in the ordinary course of business) or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entitiescapital contributions to, or grant investments in, any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity InterestsPerson;
(iii) terminate or materially amend any of its material contracts, leases or licenses, except in the ordinary course of business;
(iv) enter into any new material agreement other than customer contracts or renewals of existing agreements in the ordinary course of business;
(v) enter into any employment agreement with any person or increase in any manner the compensation of any of the officers or other employees of its Covered Assets or New Acquisition or subsidiary thereof (as the case may be), except for such increases as are granted in the ordinary course of business in accordance with its customary practices (which shall include normal periodic performance reviews and related compensation and benefit increases);
(vi) adopt, grant, extend or increase the rate or terms of any bonus, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any officers or employees of its Covered Assets or New Acquisition or subsidiary thereof (as the case may be), except increases required by any applicable law, rule or regulation (which shall include normal periodic performance reviews and related compensation and benefit insurance);
(vii) decrease its capital stock or declare, set aside or pay any dividend or make any other distribution (whether in cash, securities assets, stock or other property or by allocation a combination thereof) in respect of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies capital stock or procedures or any profit reserves (other than dividend payments made due to the applicable requirements according to the applicable Brazilian laws and by-laws of those of its methods Covered Assets or New Acquisition or subsidiary thereof (as the case may be), which have as minority shareholders or preferred shareholders Persons which are not part of reporting incomeeither Group, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result provided that 50% (fifty percent) of the filing difference between the aggregate amount of any such dividend payments which are received by members of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit PT Group in Euros and the adoption aggregate amount of any amendment such dividend payments which are received by members of the Organizational Documents TEF Group in Euros, shall be paid to the other Group at the Balance Closing by the Group having received the highest of any Key Subsidiary or effect a split, combination or reclassification or other adjustment such aggregate amount of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2dividends);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse pledge or otherwise become liable or responsible (whether directly, contingently or otherwise) for encumber any of the obligations Interests held in any of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiariestheir subsidiaries;
(ix) discharge or satisfy make any Indebtedness change in excess any of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due its present accounting methods and practices, except as required by changes in accordance with its originally scheduled terms;generally accepted accounting principles; or
(x) other than as is required make any commitment or engage in any negotiations to take any actions referred to in Sections 6.1(b)(i) through (ix) above.
(c) Unless previously and expressly agreed in writing by the terms of a Parent Employee Benefit Plan and Policy (Parties in effect on the date hereof and set forth on Section 4.10 each specific event, each of the Sellers’ Disclosure Schedule)TEF Group and the PT Group shall not sell or otherwise dispose of or pledge or otherwise encumber, any Assumed Plan (in effect on of the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) Interests held in any material respect in a manner that is adverse to of their Covered Assets or New Acquisitions, or make any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination commitment or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or engage in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect negotiations to do any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 4 contracts
Samples: Subscription Agreement (Portugal Telecom SGPS Sa), Subscription Agreement (Telefonica Mobile Inc), Subscription Agreement (Telefonica S A)
Conduct of Business. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, without Surf Air’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), and except (x) as otherwise expressly required, contemplated or permitted by this Agreement, (y) as set forth in Section 4.01(a) of the Disclosure Schedule or (z) as required by applicable Legal Requirements, the Company shall, and shall cause each of its Subsidiaries:
(a) Except to use reasonable best efforts to conduct its business in all material respects in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, except for any action taken or omitted to be taken by the Company or any of its Subsidiaries acting reasonably and in good faith in response to COVID-19 or any COVID-19 Measures;
(ib) to pay its Indebtedness when due in accordance with its terms, taking into account applicable cure periods;
(c) to pay and perform in all material respects its other obligations when due in accordance with their terms taking into account applicable cure periods; and
(d) to use reasonable best efforts to preserve intact its present business organizations, keep available the services of the Key Employee and sufficient Management Individuals (or replacements thereto) as are necessary to operate the Company in accordance with the regulations of the FAA, and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with them, all with the goal of preserving the goodwill and ongoing businesses of the Company and the Subsidiaries at the Effective Time, except that the Company or its Subsidiaries may acting reasonably and in good faith take action or omit to take action in response to COVID-19 or any COVID-19 Measures. Notwithstanding the generality of the foregoing, without Surf Air’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), and except (x) as otherwise expressly required, contemplated by or permitted under by this Agreement, including the DIP Facility; (iiy) disclosed on as set forth in Section 6.2 4.01(a) of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); Schedule or (ivz) as required by applicable Legal Requirements, the Company shall not, or resulting from any changes permit its Subsidiaries to applicable Laws, from and after the date of this Agreement and continuing until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) toEffective Time:
(i) take make, cause or permit any action material modification, amendment or change to the terms of, or terminate (other than in accordance with respect its terms), any of the Scheduled Indebtedness (or agree to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsordo so);
(ii) issueother than in the ordinary course in connection with the Car Rental Program, sellincur any Indebtedness (whether under the Scheduled Indebtedness or otherwise), pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition guarantee any Indebtedness of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;Person; or
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) violate in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course terms of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsScheduled Indebtedness.
Appears in 3 contracts
Samples: Acquisition Agreement (Surf Air Mobility Inc.), Acquisition Agreement (Surf Air Mobility Inc.), Acquisition Agreement (Surf Air Mobility Inc.)
Conduct of Business. (a) Except as (i) otherwise required by applicable Law or Judgment or as expressly contemplated required by or permitted under this Agreement, including during the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and until the Effective Time (or such earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with date on which this Agreement or with the consummation of the Closing, (C) use reasonable best efforts is validly terminated pursuant to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a7.1), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written unless Parent otherwise expressly consents in writing (such consent of Purchaser (which consent shall not to be unreasonably withheld, conditioned or delayed), the Partnership shall, and shall cause each of its Subsidiaries to, (i) conduct its business in the ordinary course of business consistent with past practice and (ii) to the extent consistent with the foregoing, use commercially reasonable efforts to maintain and preserve intact its business organization, existing relations with key customers, suppliers and other Persons with whom the Partnership or its Subsidiaries have significant business relationships and the goodwill and reputation of the Partnership’s and its Subsidiaries’ respective businesses.
(b) Except as required by applicable Law or Judgment or as expressly required by this Agreement, during the period from the date of this Agreement until the Effective Time (or such Seller earlier date on which this Agreement is validly terminated pursuant to Section 7.1), unless Parent otherwise expressly consents in writing (such consent not to be unreasonably withheld, conditioned or delayed), the Partnership shall not, and shall cause each of its Subsidiaries not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, transfer, pledge, create an Encumbrance or otherwise dispose of of, grant or authorize the issuance, sale, transfer, pledge, Encumbrance disposition or disposition of grant of, any Equity Interests of Common Units or other equity or voting interests in the Transferred EntitiesPartnership or its Subsidiaries, as applicable, or grant any optionssecurities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any Common Units or other equity or voting interests, or any rights, warrants or other rights options to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities shares of its Common Units or other property equity or by allocation of additional Indebtedness to any Seller voting interests in the Partnership or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary)its Subsidiaries, except for dividends and distributions among as applicable; provided that the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions Partnership may issue Common Units or other material items for financial accounting purposes, except securities as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or required pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines the issuance of credit (including through the incurrence Common Units upon conversion of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due Class B Units in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Partnership Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 3 contracts
Samples: Merger Agreement (GasLog Partners LP), Merger Agreement (GasLog Ltd.), Merger Agreement (GasLog Ltd.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from From and after the date of this Agreement hereof and until the earlier of the Closing and or the termination of this AgreementAgreement in accordance with Section 8.1 (the “Interim Period”), Sellers without limiting anything contained in Section 5.2(c), and unless otherwise agreed to in advance and in writing by Purchaser A (such agreement not to be unreasonably withheld) each of the Seller and the BComm Companies shall and shall cause each Purchased Subsidiary use (subject to (Aapplicable fiduciary duties under applicable Legal Requirements) conduct their operations its entire voting rights in the Ordinary Course of BusinessCompany and Bezeq, respectively (Bin case such matters are brought to a shareholders’ vote) so that the BComm Companies and Bezeq and its subsidiaries shall, not take take, do, effect or allow (or commit or agree to take, do, effect or allow) any action inconsistent with this Agreement or with the consummation of the Closing, Restricted Matters (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties except as set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (ESchedule 5.2(a) not take any action that would reasonably be expected to materially prevent or delay the Closinghereof).
(b) Subject to During the exceptions Interim Period, without limiting anything contained in clauses Section 5.2(c), the Company shall, and the Company shall cause the other BComm Companies to:
(i) through conduct its business in the ordinary course and in compliance with applicable Legal Requirements; and
(ivii) of Section 6.2(a)except as set forth in Schedule 5.2(b)(ii) hereof, each Seller agrees thatnot take, from and after the date of this Agreement and until the earlier do, effect or allow (or commit or agree to take, do, effect or allow) any of the Closing Restricted Matters, unless otherwise consented to in advance and in writing by Purchaser A (such consent not to be unreasonably withheld).
(c) Until the termination end of this Agreementthe Interim Period, without the prior written consent of Purchaser A (which such consent shall not to be unreasonably withheld, conditioned or delayed), such ) (i) the Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) directly or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issueindirectly, sell, pledgetransfer, create an Encumbrance convey, exchange, assign, gift, Encumber, or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller Purchased Shares or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller rights therein or any Key Subsidiary)thereto, except for dividends and distributions among (ii) the Purchased Subsidiaries;
(iv) Company shall not, directly or indirectly, purchasesell, redeem transfer, convey, exchange, assign, gift, Encumber, or otherwise acquire dispose of any Equity Interests of the Company Owned Securities or any rights therein or thereto, (iii) the Company shall cause SP1 not to acquire any Equity Interests of any Seller (and the Company shall be responsible if SP1 does), directly or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting incomeindirectly, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign convey, exchange, assign, gift, Encumber, or otherwise dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof SP2 Securities or the SP1 Bezeq Shares, and (iv) the Company shall cause SP2 not to (and the Company shall be responsible if SP2 does), directly or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securitiesindirectly, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assumesell, guaranteetransfer, endorse convey, exchange, assign, gift, Encumber, or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations dispose of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsSP2 Bezeq Shares.
Appears in 3 contracts
Samples: Share Purchase Agreement (B Communications LTD), Share Purchase Agreement (Internet Gold Golden Lines LTD), Share Purchase Agreement (T.N.R. Investments Ltd.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this AgreementSeller agrees that, including during the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and or the termination of this AgreementAgreement in accordance with Article VII, Sellers shall and shall cause each Purchased Subsidiary except as (i) required by applicable Law, including as required by any formal guidance, proclamations or directives issued by any Governmental Entity in response to (A) conduct their operations in the Ordinary Course of Businessa Contagion Event, (Bii) not take any action inconsistent with set forth in Section 5.1(a) of the Seller Disclosure Letter, (iii) expressly contemplated by this Agreement or with necessary to complete the consummation of transactions contemplated hereby or by the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation Ancillary Agreements or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser consented to by Buyer in writing (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), such (A) Seller shall conduct, and shall cause the Acquired Companies and Asset Sellers to conduct, the FSS Business and the business of the Acquired Companies in the ordinary course of business consistent with past practice, (B) to the extent consistent with clause (A), use commercially reasonable efforts to preserve substantially intact the FSS Business and maintain its existing relations and goodwill with policyholders, contractholders, beneficiaries, customers, Insurance Producers, Mutual Fund Organizations, reinsurers, Governmental Entities, employees and others having business relations with the FSS Business and (C) Seller shall not, and shall cause its applicable Affiliates not permit any of the Key Subsidiaries to (and in the case of clauses (i), (ix), (xiii) it being understood that no act or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any omission by Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business Affiliates with respect to Employees who are not current or former directors or officers the matters specifically addressed by any provision of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), this clause (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change shall be deemed to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of be a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each breach of clause (A) or clause (B)):
(i) purchase, from engaging sell, lease, exchange, transfer or competing otherwise dispose of or acquire any material property, assets or rights that (A) presently constitute, or at the Closing would constitute, part of the Purchased Assets or (B) are owned by the Acquired Companies, in any line each case, other than (I) transactions occurring in the ordinary course of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection consistent with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.past practice,
Appears in 3 contracts
Samples: Master Transaction Agreement, Master Transaction Agreement, Master Transaction Agreement
Conduct of Business. During the period on and from the Effective Date through and including the Closing Date, Seller will conduct the Business only in the ordinary course consistent with past practices, unless Buyer shall otherwise agree in writing. Without limiting the generality of the foregoing,
(a) Except as Seller will:
i. use commercially reasonable efforts to (i) otherwise expressly contemplated by or permitted under this Agreementkeep available (subject to dismissals and retirements in the ordinary course of business consistent with past practice) the services of the Business Employees, including the DIP Facility; (ii) disclosed on Section 6.2 maintain the good will of wholesalers, customers, suppliers, lenders and other persons and entities to whom Seller sells goods or provides services or with whom Seller otherwise has significant business relationships in connection with the Sellers’ Disclosure Schedule; Business, and (iii) approved continue all current sales, marketing and promotional activities relating to the Business;
ii. except to the extent required by applicable law, (i) cause the Bankruptcy Court Books and Records to be maintained in the usual, regular and ordinary manner, and (ii) not permit any material change in any pricing, investment, accounting, financial reporting, inventory, credit, allowance or Tax practice or policy of Seller or its Affiliates that would adversely affect the Business, the Assets or the Assumed Liabilities;
iii. comply, in all material respects, with all laws and orders applicable to the Business and promptly following receipt thereof give Buyer copies of any * Certain information on this page has been omitted and filed separately with the SEC. Confidential treatment has been requested with respect to the omitted portions. notice received from any Governmental Entity or any other court person or entity alleging any violation of any such law or order;
iv. work diligently and in good faith to complete, as promptly as reasonably practicable, the application to be submitted to the FDA to obtain the Initial FDA Approval, such application to be in form and substance reasonably satisfactory to Buyer; provided, if Seller completes such application prior to the Closing Date and the application is in form and substance reasonably satisfactory to Buyer, then Seller will promptly file such application with the FDA;
v. work diligently and in good faith to [****]* and any and all work and agreements relating thereto and [****]* related thereto; and
vi. promptly provide to Buyer written notice of (i) any formal action taken, or non-privileged communication made, by Seller or any other Governmental Authority party to the Sun Litigation in connection therewith, and (ii) Seller’s filing of any citizen’s petition or issuance of any other response in connection with any other bankruptcythe [****]* and, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date case of this Agreement and until the earlier of the Closing and the termination of this Agreementsubclause (ii), Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of make any such date when filing or issue any such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, response without the prior written consent of Purchaser Buyer.
(which consent shall not be unreasonably withheldb) Seller will refrain from:
i. entering into, conditioned amending, modifying, terminating (partially or delayedcompletely), such Seller shall not, and shall not permit granting any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) waiver under or (xvi), shall not permit giving any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value consent with respect to any Equity Interest of Seller Assumed Contract or any Key Subsidiary), except for dividends and distributions among the Purchased SubsidiariesRegistration;
(iv) directly ii. violating, breaching or indirectlydefaulting under, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect respect, or taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any Assumed Contract or any Registration;
iii. waiving any right of Seller under any Liability of or owing to Seller in a manner that is adverse to any Seller that is a party theretoconnection with the Business, other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or iv. engaging in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan transaction with respect to the Business with any officer, director or Affiliate of Seller, either outside the ordinary course of business consistent with past practice or other than on an arm’s-length basis; and
v. entering into any agreement to do or engage in any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Facet Biotech Corp), Asset Purchase Agreement (Biotech Spinco, Inc.), Asset Purchase Agreement (PDL Biopharma, Inc.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after From the date of this Agreement and until through the earlier of the Closing and the or valid termination of this AgreementAgreement pursuant to Article X (the “Interim Period”), Sellers shall the Company shall, and shall cause each Purchased Subsidiary to its Subsidiaries to, except (Ai) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with as required by this Agreement or with the consummation of the ClosingAncillary Agreements, (Cii) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, as required by Law (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(aincluding Pandemic Measures), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser or (iii) as consented to by OmniLit in writing (which consent shall not be unreasonably conditioned, withheld, conditioned delayed or delayeddenied), operate the business of the Company in the ordinary course consistent with past practice and use commercially reasonable efforts to (A) preserve intact the current business organization and ongoing businesses of the Company and its Subsidiaries, (B) maintain the existing material business relations of the Company and its Subsidiaries, and (C) keep available the services of their present officers and other key employees; provided, that, notwithstanding anything to the contrary in this Agreement, the Company and its Subsidiaries may take any Pandemic Response Measures; provided further, that the Company shall, to the extent practicable, inform OmniLit of any such Seller actions prior to the taking thereof and shall consider in good faith any suggestions or modifications from OmniLit with respect thereto. Without limiting the generality of the foregoing, except as set forth on Section 6.1 of the Company Disclosure Letter or as consented to by OmniLit in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) the Company shall not, and shall cause its Subsidiaries not permit any of to, except as required by this Agreement or the Key Subsidiaries Ancillary Agreements or required by Law (and in the case of clauses (i), (ix), (xiiiincluding Pandemic Measures) or (xvi), shall not permit in connection with any Purchased Subsidiary) toPandemic Response Measures:
(ia) take change, waive or amend the Governing Documents of the Company or any action with respect of its Subsidiaries or form or cause to which be formed any Seller has granted approval rights to Sponsor under any Contract, including under new Subsidiary of the UST Credit Facilities, without obtaining the prior approval of such action from SponsorCompany;
(iib) issuemake, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside aside, establish a record date for or pay any dividend or distribution to the equity holders of the Company or make any distribution other distributions in respect of any of the equity interests of the Company;
(whether in cashc) split, securities combine, reclassify, recapitalize or other property otherwise amend any terms of any shares or by allocation series of additional Indebtedness to any Seller the Company’s or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller its Subsidiaries’ capital stock or any Key Subsidiary)equity interests, except for dividends and distributions among any such transaction by a wholly owned Subsidiary of the Purchased SubsidiariesCompany that remains a wholly owned Subsidiary of the Company after consummation of such transaction;
(ivd) directly or indirectlypurchase, purchaserepurchase, redeem or otherwise acquire any Equity Interests issued and outstanding share capital, outstanding shares of capital stock, membership interests or any rights to acquire any Equity Interests other equity interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures the Company or any of its methods Subsidiaries, except for (i) the acquisition by the Company or any of reporting incomeits Subsidiaries of any shares of capital stock, deductions membership interests or other material items for financial accounting purposesequity interests (other than shares subject to Company Awards) of the Company or its Subsidiaries in connection with the forfeiture or cancellation of such interests, except as permitted by GAAPand (ii) transactions between the Company and any wholly-owned Subsidiary of the Company or between wholly-owned Subsidiaries of the Company.
(e) enter into, amend, modify or terminate (other than expiration or renewal in accordance with its terms) any Contract of a SEC rule, regulation or policy or applicable Lawtype required to be listed on Section 4.21(a) of the Company Disclosure Letter, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted EncumbranceReal Property Lease, in each case, except other than in the Ordinary Course ordinary course of Business business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2)required by Law;
(viiif) (A) incur sell, assign, transfer, convey, lease or assume otherwise dispose of, or subject to a Lien, any Indebtedness for borrowed money material tangible assets or issue any debt securitiesproperties of the Company or its Subsidiaries, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines (i) dispositions of credit obsolete or worthless equipment (including through the incurrence of Intercompany Obligationsii) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary transactions between or among the SubsidiariesCompany and its wholly-owned Subsidiaries and (iii) transactions in the ordinary course of business;
(ixg) discharge or satisfy acquire any Indebtedness ownership interest in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled termsreal property;
(xh) except as otherwise required by Law or existing Company Benefit Plans, (i) grant or pay any severance, retention, special bonus, change in control or termination or similar pay to any director, manager, officer, employee or other individual service provider of the Company or its Subsidiaries, (ii) terminate, furlough or hire any director, executive officer or employee with an annual base salary of at least $250,000 (each, a “Specified Service Provider”) (other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Scheduleterminations for cause), (iii) terminate, adopt, enter into or materially amend any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and SponsorCompany Benefit Plan, (Aiv) increase the compensation or benefits of any Employee Specified Service Provider, (v) establish any trust or take any other action to secure the payment of Sellers any compensation payable by the Company or any Purchased Subsidiary of its Subsidiaries or (except for increases in salary or wages in the Ordinary Course of Business with respect vi) take any action to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate waive any Benefit Plan (including any change to any actuarial performance or other assumption used to calculate funding obligations with respect to any Benefit Plan vesting criteria or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under benefit payable by the Company or any Benefit Planof its Subsidiaries;
(xii) modifyacquire by merger or consolidation with, amendor merge or consolidate with, terminate or waive purchase substantially all or a material portion of the assets of, any rights under any Affiliate Contract corporation, partnership, association, joint venture or Seller Material Contract (except for any dealer sales and service Contracts other business organization or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Businessdivision thereof;
(xiii) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Subsidiary or otherwise incur or assume any Indebtedness other than trade payables incurred in the ordinary course of business, or (ii) guarantee any Indebtedness of another Person;
(i) make (except on an originally filed Tax Return) or change any material election in respect of material Taxes, (ii) materially amend or modify any filed material Tax Return, (iii) change or request permission of any taxing authority to change any accounting method in respect of material Taxes, (iv) enter into any Seller Material Contract other than as contemplated by Section 6.7closing agreement in respect of material Taxes executed on or prior to the Closing Date or enter into any Tax sharing or similar agreement, (v) settle any claim or assessment in respect of material Taxes, (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 or in respect to any material Tax attribute that would give rise to any claim or assessment of Taxes;
(xiiil) acquire take any action where such action could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(including by mergerm) (i) issue, consolidationdeliver, combination sell, transfer, pledge, dispose of or acquisition of Equity Interests or assets) place any Person or business or division thereof Lien (other than acquisitions a Permitted Lien) on, or enter into any Contract with respect to the voting of, any equity securities of portfolio assets the Company or any of its Subsidiaries, or securities exercisable for or convertible into any equity securities of the Company or any of its Subsidiaries (including Company Awards), other than the issuance of shares of Company Common Stock pursuant to the exercise of Company options that are outstanding as of the date of this Agreement in accordance with their current terms and acquisitions which are vested at the time of exercise or (ii) grant any additional Company Awards or other equity or equity-based compensation, other than to new hires in the Ordinary Course ordinary course of Business) business consistent with past practice or to existing employees in a transaction (or series connection with refresh grants in the ordinary course of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000business consistent with past practice;
(xivn) alteradopt a plan of, whether through a or otherwise enter into or effect a, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoingCompany or its Subsidiaries (other than the Merger);
(xvo) waive, release, settle, compromise or otherwise resolve any inquiry, investigation, claim, Action, litigation or other Legal Proceedings, except in 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 in the aggregate;
(p) grant to, or agree to grant to, 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 Intellectual Property that is material to the Company and its Subsidiaries except for the expiration of Company Registered Intellectual Property in accordance with the applicable statutory term (or in the case of domain names, applicable registration period) or in the reasonable exercise of the Company’s or any of its Subsidiaries’ business judgment as to the costs and benefits of maintaining the item;
(q) disclose or agree to disclose to any Person (other than OmniLit 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 other than in the ordinary course of business and pursuant to obligations to maintain the confidentiality thereof;
(r) make or commit to make capital expenditures other than in an amount not in excess of the amount set forth on Section 6.1(r) of the Company Disclosure Letter, in the aggregate;
(s) enter into any Contract that limits with any broker, finder, investment banker or otherwise restricts other Person under which such Person is or that would reasonably will be expected toentitled to any brokerage fee, after finders’ fee or other commission in connection with the Closingtransactions contemplated by this Agreement;
(t) enter into or extend any collective bargaining agreement or similar labor agreement or recognize or certify any labor union, restrict labor organization, or group of employees of any of the Company or its Subsidiaries as the bargaining representative for any employees of any of the Company or its Subsidiaries;
(u) 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;
(v) waive the restrictive covenant obligations of any current or former director, manager, officer, employee or other service provider of the Company or any of its Subsidiaries;
(w) make any change in financial accounting methods, principles or practices of the Company and its Subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law or to comply with SEC guidance;
(x) (i) limit in any material respect (A) Purchaser the right of the Company or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing 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, materially and adversely affect, or materially disrupt, the ordinary course operation of the businesses of the Company and its Subsidiaries, taken as a whole;
(xviy) terminate without replacement or amend in a manner materially detrimental to the Company and its Subsidiaries, taken as a whole, any insurance policy insuring the business of the Company or any of its Subsidiaries; or
(z) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with agreement to do any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsaction prohibited under this Section 6.1.
Appears in 3 contracts
Samples: Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under set forth in this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of RSA, the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement Plan or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (Requisite Commitment Parties, which consent shall not be unreasonably withheld, conditioned or delayed, during the period from the date of this Agreement to the earlier of the Closing Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”), such Seller the Company shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course in a manner consistent with past practices and use its commercially reasonable efforts to (i) preserve intact its business, (ii) preserve its material relationships with customers, suppliers, licensors, licensees, distributors and others having material business dealings with the Company or its Subsidiaries in connection with their business, (iii) maintain books, accounts and records, (iv) comply with applicable Law in all material respects and (v) file Company SEC Documents within the time periods required under the Exchange Act.
(b) Except as set forth in this Agreement, the RSA, the Plan or with the prior written consent of the Requisite Commitment Parties, during the Pre-Closing Period, the Company shall not, and shall not permit any of the Key its Subsidiaries to, enter into any transaction that is material to their business other than (and A) transactions in the case ordinary course of clauses business and consistent with past practices, (iB) other transactions after prior notice to the Commitment Parties to implement tax planning which transactions are not reasonably expected to materially adversely affect any Commitment Party, (C) transactions expressly contemplated by the RSA or the other Definitive Documents, and (D) such other transactions set forth in Section 6.2 of the Company Disclosure Schedules. For the avoidance of doubt, (1) the Company’s and its Subsidiaries’ entry into, or any amendment, assumption, modification, termination, waiver, supplement, replacement, restatement, reinstatement, or other change to, any Material Contract (x) with a value less than $10,000,000 or (y) that does not result in an increase (on a present value basis, applying a reasonable discount rate) of the Company’s liabilities with respect to such Material Contract (other than any Material Contracts that are otherwise addressed by clause (ii) below) may be accomplished without the consent of the Requisite Commitment Parties, and (2) the following shall be deemed to occur outside of the ordinary course of business of the Company and shall require the prior written consent of the Requisite Commitment Parties unless the same would otherwise be expressly provided for under the RSA, the Plan or this Agreement (including the preceding clause (B), (ix), (xiiiC) or (xviD), shall not permit any Purchased Subsidiary) to:
): (i) take transferring any action with respect material asset or material right of the Company Parties or any material asset or material right used in the business of the Company Parties to which any Seller has granted approval rights to Sponsor under any Contract, including under Person or entity outside the UST Credit Facilities, without obtaining the prior approval ordinary course of such action from Sponsor;
business; (ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entitiesentry into, or grant any optionsamendment, warrants assumption, modification, termination, waiver, supplement, replacement, restatement, reinstatement or other rights change to, any Material Contract that has a value equal to purchase or obtain greater than $10,000,000 (including upon conversion, exchange or exerciseother than any Material Contracts that are otherwise addressed by clause (v) any such Equity Interests;
below); (iii) declareentry into, set aside or pay any dividend or make any distribution amendment, modification, termination (whether in cashother than for cause), securities waiver, supplement or other property or by allocation of additional Indebtedness change to, any employment agreement to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among which the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures Company or any of its methods of reporting income, deductions Subsidiaries is a party or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption assumption of any amendment of such employment agreement in connection with the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any EncumbranceChapter 11 Cases, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant with respect to a Contract in existence as of the date hereof (or employment agreements entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines the ordinary course of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or business consistent with the expiration past practice that do not contain a change of a Collective Bargaining Agreementcontrol or similar provision, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsorlaw, (Aiv) increase the compensation or benefits adoption of any Employee of Sellers management incentive or equity plan by the Company or any Purchased Subsidiary (except for increases in salary or wages in of its Subsidiaries, other than the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Management Incentive Plan, (Fv) forgive any loans cold stacking, scrapping, abandonment, sale, lease, license, or other transfer or disposition, or acquisition, directly or indirectly (including through a commitment to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement an operating and maintenance agreement), of any pending Claim rig, drilling unit, workover unit, platform, or charge involving other material equipment, fixture, or other asset, in each case, with a Governmental Authority value in excess of $5,000,000, (vi) the termination, suspension, abrogation, or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) modification in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, material Environmental Permit or adopt other material permit used or approve a plan with respect to any of held for use by the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser Company or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with the conduct of business in the ordinary course, or (vii) capital expenditures made by the Company and its Subsidiaries on a per-project basis in excess of $10,000,000. Except as otherwise provided in this Agreement, nothing in this Agreement shall give the Commitment Parties, directly or indirectly, any single project right to control or group direct the operations of related projects;the Company and its Subsidiaries prior to the Closing Date. Prior to the Closing Date, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of the business of the Company and its Subsidiaries.
(xviic) open In the event the Company wishes to enter into a transaction or reopen any major production facility; and
take an action that would be otherwise prohibited under this Section 6.2, then the Company shall send a written request to the Commitment Parties (xviiiin accordance with Section 10.1(b)) agreefor permission to enter into such transaction or take such action. If the Requisite Commitment Parties fail to respond to such request for a period of three (3) Business Days, then the Company may enter into such transaction or take such action without the prior written consent of the Requisite Commitment Parties. For the avoidance of doubt, in writing or otherwise, no instance will the interim operating covenants set forth in this Section 6.2 restrict the Company’s ability to take any of actions that are necessary (in the foregoing actionsCompany’s reasonable discretion) to address any emergency that threatens health, safety or the environment.
Appears in 3 contracts
Samples: Restructuring Support Agreement (Parker Drilling Co /De/), Backstop Commitment Agreement (Parker Drilling Co /De/), Backstop Commitment Agreement
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including During the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and hereof until the earlier of the Closing and Effective Time or the termination of this AgreementAgreement in accordance with its terms, Sellers shall Caldera will continue to conduct its business and shall cause each Purchased Subsidiary to (A) conduct their operations maintain its business relationships in the Ordinary Course of Businessordinary and usual course and consistent with past practice and, (B) not take any action inconsistent with this Agreement except as otherwise disclosed herein or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customersCaldera Disclosure Letter, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreementit will not, without the prior written consent of Purchaser (SCO, which consent shall not be unreasonably withheld, conditioned withheld or delayed), such Seller shall not, and shall not permit take any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tofollowing actions where it would cause a Material Adverse Effect on Caldera:
(ia) take borrow any action with respect money except for (A) amounts that are not in the aggregate material to which any Seller has granted approval rights the financial condition of Caldera and its subsidiaries, taken as a whole or (B) pursuant to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorexisting credit facilities;
(iib) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of cause any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset Caldera Assets to become subject to any Encumbrance, other than a except for Caldera Permitted Encumbrance, in each case, Encumbrances and except in the Ordinary Course of Business or pursuant to a Contract in existence for Caldera Encumbrances arising under credit facilities existing as of the date hereof hereof;
(c) dispose of any of Caldera Assets which are material to the Caldera Business;
(d) issue capital stock representing more than a 10% interest in the total outstanding securities of Caldera;
(e) merge, consolidate or entered into reorganize with, or acquire any entity, except for transactions in compliance with which the aggregate consideration is below $15 million;
(f) amend the Certificate of Incorporation or Bylaws of Caldera or any of its subsidiaries or as otherwise expressly contemplated by this Section 6.2Agreement);
(viiig) (A) incur agree to take, or assume permit any Indebtedness for borrowed money Caldera entity to take or issue agree to take, or enter into negotiations with respect to, any debt securitiesof the actions described in the preceding clauses in this Section 5.3(g). Notwithstanding the foregoing, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through nothing in this Section 5.3 shall restrict or limit the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations conduct of any other Personbusiness of Caldera or its direct or indirect subsidiaries or the use or disposition of the Caldera Assets, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on in this Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions5.3.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Santa Cruz Operation Inc), Agreement and Plan of Reorganization (Santa Cruz Operation Inc), Agreement and Plan of Reorganization (Caldera Systems Inc)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated provided by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closingany Ancillary Agreement, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties as set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier 6.1 of the Closing and the termination of this Agreement, without the prior written consent of Seller Disclosure Letter or as expressly consented to in writing by Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such between the Effective Date and the Closing, Parent will, and will cause each Purchased Company, each other Seller and, to the extent relating to the Business, each other Affiliate of Parent to, (i) conduct the Business in all material respects in the ordinary course, consistent with past practice, and (ii) use commercially reasonable efforts to preserve intact in all material respects the material commercial relationships of the Business with customers, suppliers, manufacturers and others with whom it does business.
(b) Without limiting the generality of Section 6.1(a), and except as otherwise expressly provided in this Agreement, as set forth in Section 6.1 of the Seller Disclosure Letter or as expressly consented to in writing by Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), Parent will not, and shall will not permit a Purchased Company, any other Seller or any other Affiliate of Parent (in each case to the Key Subsidiaries (and in extent relating to the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased SubsidiaryBusiness) to:
(i) take sell, pledge, dispose of, grant, transfer, lease, license, guarantee, encumber or authorize the sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of or on any action assets, properties or rights that are (or would otherwise be) Business Assets (excluding the Business IP, provision for which is made in Section 6.1(b)(ix)), other than (x) any dividend of cash from a Purchased Company or Asset Seller or (y) any sale of inventory (including any finished goods or work-in-process) or obsolete equipment in the ordinary course of business consistent with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorpast practices;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain acquire (including upon conversionby merger, exchange consolidation or exerciseacquisition of stock or assets) any such Equity Interestsinterest in any Person or any division thereof or any assets that would be material Business Assets, other than inventory, machinery, equipment, furniture, furnishings, fixtures, tools and other tangible personal property in the ordinary course of business consistent with past practices;
(iii) declareissue, set aside sell, transfer, pledge, dispose of, split, combine, reclassify, redeem, repurchase, acquire (directly or pay indirectly) or encumber any dividend Capital Stock of, or make equity interests in (including any distribution (whether in cashrights or options to acquire any Capital Stock of, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiaryequity interests in), except for dividends and distributions among the any Purchased SubsidiariesCompany;
(iv) directly in the case of each of the following to the extent it relates to the Business, (A) make a change in its financial accounting or indirectlymaterial Tax reporting or accounting principles, purchasemethods or policies, redeem except as required by a change in GAAP, (B) except as provided in Section 10.10(c), make, change or otherwise acquire revoke any Equity Interests election under Treasury Regulations Section 301.7701-3(c) or any rights other Tax election (other than any such other Tax election made in the ordinary course of business consistent with past practice), (C) change or revoke any material method of accounting on which Tax reporting is based, (D) amend any material Tax Return, (E) settle any material Tax Proceeding, (F) enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Law) with respect to acquire a material Tax liability, (G) consent to any Equity Interests extension or waiver of the statute of limitations period applicable to any Seller material Tax claim or Key Subsidiaryassessment or (H) file any request for rulings or special Tax incentives with any Taxing Authority related to a material Tax Liability;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation required to comply with applicable Law or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent any Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule)Effective Date, (1) adopt or amend any Assumed Employee Benefit Plan (other than in connection with the adoption or amendment of Employee Benefit Plans (or other practices) that are applicable generally to employees of Parent and its Subsidiaries in the relevant jurisdictions) or increase the salaries, wage rates, target bonus opportunities or equity based compensation of any Participant, other than, in the case of salaries and wages, in the ordinary course of business consistent with past practice or pursuant to any Contract in effect on the date hereofEffective Date (the existence of which does not violate any representation, warranty or covenant in this Agreement); (2) the UAW Collective Bargaining Agreement grant or consistent with the expiration of a Collective Bargaining Agreementincrease any change in control, the Settlement Agreementretention, the UAW Retiree Settlement Agreement pension, severance or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the termination compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), Participant; (C3) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Assumed Benefit Plan Plan, enter into any trust, annuity or insurance Contract or similar agreement with respect to any Assumed Benefit Plan, or change to the manner in which contributions to any Assumed Benefit Plan are made or the basis on which such contributions are determined), except where ; (4) take any such action would reduce Sellers’ costs to fund or Liabilities pursuant to such in any other way secure the payment of compensation or benefits under any plan, (D) grant agreement, contract or arrangement with any awards under Participant or any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Assumed Benefit Plan, ; (F5) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Businessany Participant, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise take any discretion action to accelerate the time of payment or vesting of any compensation or benefits under any Employee Benefit PlanPlan or Union Contract; or (6) with respect to any Participant, make any material determination under any Employee Benefit Plan other than in the ordinary course of business consistent with past practice;
(vi) transfer (i) any Business Employee or any other service provider providing material services to the Business from the Business to any other business conducted by Parent or any of its Affiliates or (ii) any other employee or any other service provider of Parent or any of its Affiliates who is not a Business Employee from any other business conducted by Parent or any of its Affiliates to the Business, except to fill open positions or replace existing Business Employees;
(1) terminate any Business Employee, other than (x) terminations in the ordinary course, consistent with past practice, of any Business Employee whose base salary or annualized wages (as applicable) is not in excess of $100,000 or (y) for cause or poor performance (in each case, as determined by Parent or any of its Affiliates, as applicable, in their reasonable discretion and in accordance with applicable Law) or (2) hire or promote internally any individual who is a Business Employee, other than (x) hiring or promoting in the ordinary course, consistent with past practice, any Business Employee whose base salary or annualized wages is not in excess of $100,000 or (y) pursuant to written employment offers that are outstanding at the Effective Date and that have been disclosed to Purchaser and its Affiliates prior to the Effective Date;
(viii) (A) amend or modify or terminate (partially or completely), or enter into any agreement to amend or modify or terminate (partially or completely), any of the Permits (including Environmental Permits) or the Material Contracts, other than any termination in the ordinary course of business upon the expiration of such Material Contract, or (B) enter into any Contract that if in effect on the Effective Date would be a Material Contract, in each case of clauses (A) and (B) other than, in the case of any Material Contract not of a type described in Sections 4.10(a)(iii) or 4.10(a)(xii) and otherwise subject to the other limitations set forth in this Section 6.1(b), in the ordinary course of business consistent with past practice; provided that in the event Parent or any of its Affiliates seeks to enter into, amend, modify or terminate (partially or completely), or enter into any agreement to amend, modify or terminate (partially or completely), any Material Contract of a type described in Section 4.10(a)(v), Parent or such Affiliate of Parent, as applicable, shall provide prior written notice of such action to Purchaser; provided, that any documents or information provided to Purchaser in connection with such notice shall be subject to the Confidentiality Agreement and shall be deemed “Restricted Evaluation Material” as that term is defined in the Addendum Letter, dated September 21, 2016, to the Confidentiality Agreement;
(ix) except in the ordinary course of business and consistent with past practice, modify, transfer, dispose of, terminate, abandon, cause to lapse or grant any rights to any Intellectual Property that is, or would be, Business IP;
(x) enter into any settlement, or offer or propose to enter into any settlement, (A) with respect to the matters set forth in Section 6.1(b)(x) of the Seller Disclosure Letter (provided that if Purchaser does not provide its consent with respect to any such settlement, offer or proposal, Purchaser will be responsible for 50% of any reasonable out-of-pocket costs, expenses or fees incurred by Parent or any of its Affiliates arising out of or in connection with the matters set forth in Section 6.1(b)(x) of the Seller Disclosure Letter arising or incurred after Purchaser’s delivery of such non-consent), (B) that would materially and adversely affect the validity or enforceability of any material Business IP or materially restrict the right of Parent and its Affiliates to use such Business IP, (C) pursuant to which Purchaser or any of its Affiliates would or could be obligated to make any monetary payments following the Closing or (D) that would otherwise reasonably be expected to be, individually or in the aggregate, material to the Business following the Closing, including any such settlement that would limit the ability of Purchaser to conduct the Business following the Closing in any geography or in any other material respect;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in adopt a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course plan of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any Asset Seller or Purchased Company;
(xii) amend the certificate of incorporation, bylaws or other governance documents of any Purchased Company;
(xiii) create, incur, assume or guarantee any indebtedness for borrowed money or make any loans, advances or capital contributions to or investments in any Person, other mannerthan (1) such indebtedness as will be discharged prior to the Closing, (2) such indebtedness as would constitute Outstanding Indebtedness if created, incurred, assumed or guaranteed immediately prior to the legal structure Closing and that can be discharged at or ownership prior to the Closing or (3) advances of trade credit to customers in the ordinary course of business consistent with past practice;
(xiv) amend or modify or terminate any Lease or enter into any lease of real property, except in respect of any Key Subsidiaryamendments, modifications or adopt or approve a plan renewals of Leases in the ordinary course of business consistent with respect to any of the foregoingpast practice;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in cancel any material respect (A) Purchaser indebtedness owed to any Seller or any of its Subsidiaries the Purchased Companies in respect of the Business or waive any successor thereto claims or (B) any Affiliates rights of Purchaser or any successor theretosubstantial value primarily related to the Business, in each case other than in the case of each of clause (A) or (B), from engaging or competing in any line ordinary course of business or in any geographic area;consistent with past practice; or
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 3 contracts
Samples: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Stanley Black & Decker, Inc.), Stock and Asset Purchase Agreement (Newell Brands Inc)
Conduct of Business. (a) Except as (i) otherwise as required by applicable Law or Judgment, (ii) as expressly contemplated contemplated, permitted or required by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by to the Bankruptcy Court (or any other court or other Governmental Authority extent reasonably undertaken in connection with any other bankruptcyCOVID-19 Measures, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) subject to Section 5.01(b)(xxi) and solely to the extent and for so long as the Company’s Cash on Hand (including, for the avoidance of doubt, any amounts held pursuant to escrow arrangements or in the Segregated Account) shall be less than an amount equal to the then in effect Minimum Cash Amount plus $500,000, in connection with any preparatory work required by or resulting from any changes for seeking relief under the United States Bankruptcy Code, solely to the extent the Special Committee has determined in good faith, after consultation with, and taking into account the advice of, its financial advisor and outside legal counsel, that the failure to conduct such preparatory work would be inconsistent with the directors’ fiduciary duties under applicable Laws, and which preparatory work shall take into account any such previously prepared preparatory work in order to minimize cost (“Bankruptcy Preparatory Work”) or (v) as described in Schedule 5.01(a) of the Company Disclosure Letter, in each case, during the period from and after the date of this Agreement and until the Effective Time (or such earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with date on which this Agreement or with the consummation of the Closing, (C) use reasonable best efforts is validly terminated pursuant to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a7.01), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written unless Parent otherwise expressly consents in writing (such consent of Purchaser (which consent shall not to be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to, use its and their commercially reasonable efforts (taking into consideration the financial condition and cash runway of the Company) to (x) carry on its business in all material respects in the ordinary course of business and (y) preserve intact in all material respects its and each of its Subsidiaries’ business organizations and existing relations with key customers, suppliers and other Persons with whom the Company or its Subsidiaries have significant business relationships and the goodwill and reputation of the Company’s and its Subsidiaries’ respective businesses; provided, however, that no action by the Company or its Subsidiaries with respect to the matters specifically addressed by any provision of Section 5.01(b) shall be deemed a breach of this Section 5.01(a) unless such Seller action would constitute a breach of Section 5.01(b); provided, further, that any effect resulting from the Company’s public announcement of its consideration of a potential filing of a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code shall not be deemed to constitute, or be taken into account in determining whether there has been, a breach of this Section 5.01(a).
(b) Except (i) as required by applicable Law or Judgment, (ii) as expressly contemplated, permitted or required by this Agreement, (iii) to the extent reasonably undertaken in connection with any COVID-19 Measures, (iv) subject to Section 5.01(b)(xxi) and solely to the extent and for so long as the Company’s Cash on Hand (including, for the avoidance of doubt, any amounts held pursuant to escrow arrangements or in the Segregated Account) shall be less than an amount equal to the then in effect Minimum Cash Amount plus $500,000, in connection with any Bankruptcy Preparatory Work or (v) as described in Schedule 5.01(b) of the Company Disclosure Letter, in each case, during the period from the date of this Agreement until the Effective Time (or such earlier date on which this Agreement is validly terminated pursuant to Section 7.01), unless Parent otherwise expressly consents in writing (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause each of its Subsidiaries not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, transfer, pledge, create an Encumbrance or otherwise dispose of of, grant or authorize the issuance, sale, transfer, pledge, Encumbrance disposition or disposition grant of, any shares of any Equity Interests of the Transferred Entitiesits capital stock or other equity or voting interests, or grant any optionssecurities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of its capital stock or other equity or voting interests, or any rights, warrants or other rights options to purchase any shares of its capital stock or obtain other equity or voting interests, except any issuance of Common Shares or other securities as required pursuant to the vesting, settlement or exercise of Company Equity Awards or purchase rights under the Company ESPP, in each case outstanding on the date of this Agreement in accordance with the terms of the applicable Company Equity Award or the Company ESPP, in each case in effect on the date of this Agreement;
(including upon conversionii) redeem, exchange purchase or exerciseotherwise acquire, directly or indirectly, any outstanding Common Shares or other equity or voting interests of the Company or its Subsidiaries or any rights, warrants or options to acquire any Common Shares or other equity or voting interests of the Company or its Subsidiaries, except (A) any such pursuant to the Company Equity InterestsAwards or purchase rights under the Company ESPP, in each case outstanding on the date of this Agreement and in accordance with the terms of the applicable Company Equity Award or the Company ESPP, in each case in effect on the date of this Agreement or (B) in connection with the satisfaction of Tax withholding obligations with respect to Company Equity Awards;
(iii) establish a record date for, declare, set aside for payment or pay any dividend on, or make any other distribution (whether in cashrespect of, any shares of its capital stock or other equity or voting interests, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of its capital stock or other property equity or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary)voting interests, except for dividends and or distributions among from wholly owned Subsidiaries of the Purchased SubsidiariesCompany to other wholly owned Subsidiaries of the Company or to the Company;
(iv) directly split, combine, subdivide or indirectly, purchase, redeem reclassify any Common Shares or otherwise acquire any Equity Interests other equity or voting interests of the Company or any rights to acquire any Equity Interests non-wholly owned Subsidiaries of any Seller or Key Subsidiarythe Company;
(v) materially change (A) amend the Company Organizational Documents or (B) amend in any material respect the comparable organizational documents of any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result the Subsidiaries of the filing of the Bankruptcy CasesCompany;
(vi) adopt any amendments to its Organizational Documents a plan or permit the adoption agreement of any amendment complete or partial liquidation or dissolution, merger, amalgamation, consolidation, restructuring, recapitalization or other reorganization of the Organizational Documents Company or any of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereofits Subsidiaries;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule)any Company Plan, any Assumed Plan (as in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, : (A) increase or commit to increase the compensation or other benefits of payable or provided to any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors employee, officer, director or officers independent contractor of Sellers the Company or Seller Key Personnel), any of its Subsidiaries; (B) grant any severance increase or termination pay commit to any Employee increase, or accelerate or commit to accelerate, the funding, payment or vesting of Sellers compensation or any Purchased Subsidiary except for severance or termination pay benefits provided under any Parent Employee Benefit Plan and Policy Company Plan; (C) grant, commit to grant or as the result announce any cash or equity or equity-based incentive awards, bonus, change of a settlement of control, severance or retention award to any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers employee, officer, director or directors independent contractor of Sellers the Company or Seller Key Personnel), any of its Subsidiaries; (CD) establish, adopt, enter into, terminate or materially amend any Company Plan (or any plan, program, agreement or arrangement that would be a Company Plan if in effect on the date hereof); (E) except as required by applicable Law, recognize or certify any labor union, labor organization, works council or group of employees as the bargaining representative of any employees of the Company or its Subsidiaries; (F) hire or engage, or furlough or terminate (other than for “cause”), the employment or engagement of any Benefit Plan employee, consultant, independent contractor or individual service provider of the Company or any of its Subsidiaries whose title is “Vice President” or above or any other person whose annual base salary or wages exceeds $360,000 (including other than hiring to replace a departed employee in the ordinary course of business consistent with past practice); (G) waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement, or other restrictive covenant obligation of any current or former employee, consultant, independent contractor or individual service provider; (H) enter into any change to in control, severance or similar agreement or any actuarial retention or similar agreement with any officer, employee, director, consultant, independent contractor, or other assumption used to calculate funding obligations with respect to any Benefit Plan individual service provider of the Company or any change of its Subsidiaries, except as may be required by applicable law or the terms of the Company Plan in effect as of the date hereof; or (I) implement any employee layoffs, plant closings, reductions in force, furloughs, temporary layoffs, salary or wage reductions, work schedule changes or other similar action, to the manner in which contributions to extent such actions implicate the Worker Adjustment and Retraining Notification Act of 1988, as amended or any Benefit Plan are made similar Laws;
(viii) sell, pledge, dispose of, transfer, lease, sublease, license, guarantee or the basis on which such contributions are determinedencumber any material asset (other than Intellectual Property), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course ordinary course of Business business consistent with past practice;
(ix) make or with respect to obligations of Employees whose employment is terminated by Sellers authorize capital expenditures or a Purchased Subsidiary commitments therefor not exceeding $5,000,000 million in the Ordinary Course of Businessaggregate;
(x) sell, assign, transfer, license, sublicense, abandon, cancel, terminate or dispose of, permit to lapse or fail to renew or maintain any material Company Intellectual Property, other than Employees who are current non-exclusive licenses in the ordinary course of business, or former officers disclose any material Trade Secrets or directors other material confidential information of Sellers the Company or Seller Key Personnel or directors any of Sellers or its Subsidiaries, other than pursuant to a Purchased Subsidiary) or (G) exercise any discretion to accelerate written confidentiality and non-disclosure Contract entered into in the time ordinary course of payment or vesting of any compensation or benefits under any Benefit Planbusiness;
(xi) modifyother than in the ordinary course of business and in all material respects consistent with past practice, (A) enter into or become bound by, or permit any of the assets owned by or used by it to become bound by, any Material Contract or (B) materially amend, terminate or waive any rights material right or remedy under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of BusinessContract;
(xii) enter into any Seller Material Contract other than as contemplated transactions solely between the Company and its wholly owned Subsidiaries or solely between its wholly owned Subsidiaries, acquire any business, assets or capital stock of any Person or division thereof, whether in whole or in part (and whether by Section 6.7purchase of stock, purchase of assets, merger, consolidation or otherwise), other than the acquisition of assets from vendors or suppliers of the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;
(xiii) acquire (including by mergerterminate any existing line of business, consolidationor enter into any new line of business, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets in each case that is material to the Company and acquisitions in the Ordinary Course of Business) in its Subsidiaries, taken as a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000whole;
(xiv) altercreate or incur any Lien that would be material in scope and amount to the Company and its Subsidiaries taken as a whole, whether through a complete other than Permitted Liens or partial liquidationLiens securing indebtedness permitted pursuant to clause (xv) below;
(xv) (A) incur, dissolutionassume, mergerguarantee or otherwise become liable for any indebtedness (directly, consolidationcontingently or otherwise), restructuringother than borrowings under any existing credit facility (including the Securities Purchase Agreement dated August 4, reorganization 2023, as amended) or borrowings from any trade creditor in the ordinary course of business consistent with past practice not to exceed $2,000,000 in the aggregate or (B) enter into any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect Contract related to any of the foregoing;
(xvxvi) enter into cancel, modify, waive or prepay any Contract that limits indebtedness or otherwise restricts claims held by or that would reasonably owed to the Company or any of its Subsidiaries except as canceled, modified, waived or prepaid in the ordinary course of business not to exceed $250,000 individually or $1,000,000 million in the aggregate;
(xvii) sell inventory outside of the ordinary course of business or fail to order, maintain and manage levels of inventory consistent with the levels ordered, maintained and managed by the Company and its Subsidiaries in the ordinary course of business;
(xviii) other than with respect to any Action commenced or, to the Company’s Knowledge, threatened against the Company or its directors which relates to this Agreement or the Transactions, which shall be expected tosubject to Section 5.09, settle any Action for an amount in excess of $100,000 individually or $500,000 in the aggregate other than (A) any settlement or compromise where the amount paid or to be paid by the Company or any of its Subsidiaries is fully covered by insurance coverage (subject to any applicable retentions or deductibles) or retention amounts maintained by the Company or any of its Subsidiaries and (B) settlements or compromises of any Action for an amount not materially in excess of the amount, if any, reflected or specifically reserved in the balance sheet (or the notes thereto) of the Company included in the Company Financial Statements (with materiality measured relative to the amount so reflected or reserved, if any); provided that, in the case of each of the foregoing clauses (A) and (B), the settlement or compromise of such Action (x) does not impose any material restriction on the business or operations of the Company or any of its Subsidiaries (or the Surviving Company, Parent or any of its Subsidiaries after the Closing) and (y) does not include any non-monetary or injunctive relief, restrict or limit in any material respect (A) Purchaser the admission of wrongdoing, by the Company or any of its Subsidiaries or any successor thereto of their respective officers or directors;
(xix) (A) make or change any material Tax election; (B) settle, consent to or compromise any Affiliates material Tax claim or assessment or surrender a right to a material Tax refund; (C) consent to any extension or waiver of Purchaser any limitation period with respect to any material Tax claim or any successor thereto, in assessment; (D) file an amended Tax Return that could materially increase the case of each of clause (A) Taxes payable by the Company or its Subsidiaries; or (B), from engaging or competing in E) enter into a closing agreement with any line of business or in Governmental Authority regarding any geographic areamaterial Tax;
(xvixx) enter into make any Contracts for capital expendituresmaterial changes with respect to financial accounting policies or procedures, exceeding $100,000,000 in except as required by Law or by GAAP or official interpretations thereof or by any Governmental Authority or quasi-Governmental Authority (including the aggregate in connection with Financial Accounting Standards Board or any single project or group of related projectssimilar organization);
(xviixxi) open or reopen pay any major production facility; andProfessional Fees other than in accordance with the parameters set forth in Schedule 5.01(b)(xxi) of the Company Disclosure Letter;
(xviiixxii) deposit, transfer to, cause to be deposited, or cause to be transferred to, the Segregated Account any amounts for the purposes of replenishing Segregated Funds that were withdrawn from the Segregated Account at the direction of the Special Committee in accordance with the penultimate sentence of Section 2.08 (other than, for the avoidance of doubt, any replenishment of the Segregated Funds pursuant to the cure right set forth in Section 7.01(d)(v)); or
(xxiii) authorize any of, or commit or agree, in writing or otherwise, to take any of of, the foregoing actions.
(c) Except as expressly contemplated, permitted or required by this Agreement, during the period from the date of this Agreement until the Effective Time (or such earlier date on which this Agreement is validly terminated pursuant to Section 7.01), neither Parent nor its Affiliates shall acquire or agree to acquire by merging or consolidating with, or by purchasing a material portion of the assets of or equity in, any Person, if doing so would reasonably be expected to (i) prevent, materially delay or materially impair the obtaining of, or adversely affect in any material respect the ability of Parent to procure, any Consents of any Governmental Authority necessary for the consummation of the Transactions or (ii) materially increase the risk of any Governmental Authority enacting, promulgating, issuing, entering, amending or enforcing any Judgment or Law enjoining, restraining or otherwise making illegal, preventing or prohibiting the consummation of the Merger.
Appears in 3 contracts
Samples: Merger Agreement (SherpaVentures Fund II, LP), Merger Agreement (Astra Space, Inc.), Merger Agreement (London Adam)
Conduct of Business. (a) Except as During the Interim Period, SPAC shall, except (i) as otherwise expressly explicitly contemplated by this Agreement or permitted under this Agreementthe other Transaction Documents or its Governing Documents effective as of the date hereof, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; as required by Law, or (iii) approved as consented to by the Bankruptcy Court (or any other court or other Governmental Authority Group Companies in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing (which consent shall not be unreasonably conditioned, withheld, conditioned or delayed), such Seller (A) use reasonable best efforts to operate its business in the ordinary course consistent with past practice; and (B) comply in all material respects with its Governing Documents. Without limiting the generality of the foregoing, except as consented to by the Group Companies in writing (which consent shall not be unreasonably conditioned, withheld or delayed) SPAC shall not, and shall not permit except as otherwise contemplated by this Agreement or the other Transaction Documents or as required by Law:
(a) change, modify or amend the Trust Agreement or its Governing Documents, or seek any approval from its shareholders to do so, except as contemplated by the Transaction Proposals;
(b) merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or be acquired by any other Person;
(c) (x) make or declare any dividend or distribution to its shareholders or make any other distributions in respect of any of the Key Subsidiaries its Equity Securities, (y) split, combine, reclassify or otherwise amend any terms of its Equity Securities, or (z) purchase, repurchase, redeem or otherwise acquire any of its issued and outstanding Equity Securities, other than, in the case of clauses SPAC only, redemptions of SPAC Ordinary Shares made as part of the SPAC Share Redemptions;
(id) (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any Tax authority to change any accounting method in respect of material Taxes, (D) enter into any closing agreement in respect of material Taxes or enter into any Tax sharing or similar agreement (other than customary commercial Contracts not primarily related to Taxes), (ix)E) settle any claim or assessment in respect of material Taxes, (xiii) or (xvi)F) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or with respect to any material Tax attribute that would give rise to any claim or assessment of Taxes;
(e) take any action, shall not permit or knowingly fail to take any Purchased Subsidiaryaction, where such action or failure to act could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment;
(f) to:
enter into, renew or amend in any material respect, any Contract with any of the Sponsors or an Affiliate of SPAC (including (i) take any action with respect to Person in which any Seller of the Sponsors has granted approval rights to Sponsor under a direct or indirect legal or beneficial ownership interest of five percent (5%) or greater and (ii) any Contract, including under Person who has a direct or indirect legal or beneficial ownership interest of five percent (5%) or greater in any of the UST Credit Facilities, without obtaining the prior approval of such action from SponsorSponsors);
(g) incur, guarantee or otherwise become liable for any Indebtedness, other than (i) liabilities incurred in the ordinary course of business and in an amount, individually or in the aggregate, not to exceed $100,000, and (ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize any SPAC Transaction Expenses (subject to the issuance, sale, pledge, Encumbrance or disposition of approval requirements specified in Section 3.8);
(A) issue any Equity Interests of the Transferred EntitiesSecurities or securities exercisable for or convertible into Equity Securities, or (B) grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value equity-based awards with respect to any Equity Interest Securities not outstanding on the date hereof, or (C) amend, modify or waive any of Seller the terms or rights set forth in any Key Subsidiary)SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein, except for dividends and distributions among (1) issuances of new SPAC convertible notes to Sponsors or their designees/affiliates in respect of the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests capitalization of any Seller or Key Subsidiary;
Working Capital Loans in the aggregate amount of no more than $3,000,000 (v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result inclusive of the filing aggregate amount of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence Working Capital Loans outstanding as of the date hereof hereof) or (or entered into 2) issuances of Equity Securities of SPAC in compliance connection with this Section 6.2the Transaction Financings in accordance with the Transaction Financing Agreements (as applicable);
(viiii) (A) incur make any change in its accounting principles or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred methods unless required by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the SubsidiariesGAAP;
(ixj) form any Subsidiary or commence any new line of business;
(k) liquidate, dissolve, reorganize or otherwise wind-up its business and operations;
(l) amend, wave or assign any material right under any material Contract to which it is a party; waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the Transactions contemplated hereby), or otherwise pay, discharge or satisfy any Indebtedness Actions, liabilities or obligations, in excess of $100,000,000 other than each case due and payable only before the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;Merger Closing; or
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xiim) enter into any Seller Material Contract other than as contemplated by agreement to do any action prohibited under this Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions9.4.
Appears in 3 contracts
Samples: Merger Agreement (Blue World Holdings LTD), Merger Agreement (Blue World Acquisition Corp), Merger Agreement (Blue World Holdings LTD)
Conduct of Business. (a) Except From the Effective Date through the Closing, except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of Commercialization Agreement or consented to by Purchaser in writing, Seller agrees that it will conduct the ClosingBusiness, (C) use reasonable best efforts and will cause the Business to preserve be conducted, in the Ordinary Course ordinary course of Business and business consistent in all material respects with past practice since January 1, 2019 and in compliance in all material respects with all applicable Laws, pay or perform all material obligations relating to the present Business as they become due and owing in the ordinary course of business consistent in all material respects with past practice since January 1, 2019, and will use, and cause the Divesting Entities to use, commercially reasonable efforts to preserve intact the Business and related relationships with suppliers, manufacturers, Governmental Authorities and other third parties relevant to the conduct of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the ClosingBusiness.
(b) Subject From the Effective Date through the Closing, except as otherwise contemplated by this Agreement or consented to by Purchaser in writing, Seller shall, and shall cause each Divesting Entity to:
(i) maintain in effect all Transferred IP Rights and applications and registrations included in the Transferred IP Rights, to the exceptions contained extent owned or controlled by Seller or its Affiliates;
(ii) maintain in effect and perform its obligations in all material respects under the Transferred Contracts, including the License; and
(iii) without limiting the generality of the foregoing clauses (i) through and (ivii), timely perform its obligations with respect to the matters set forth on Section 6.01(b)(iii) of the Disclosure Schedules.
(c) From the Effective Date through the Closing, except (i) as set forth on Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier 6.01(c) of the Closing and Disclosure Schedules or as otherwise contemplated by the termination of this AgreementTransaction Documents, without the prior written or (ii) as Purchaser shall otherwise consent of Purchaser in writing (which consent shall not be unreasonably withheld, conditioned withheld or delayed), such Seller covenants and agrees that, with respect to the Business, it shall not, and shall cause the Divesting Entities not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take sell, assign, pledge, dispose of, transfer, lease, license, encumber or authorize the sale, pledge, disposition, transfer, lease, license or encumbrance of any action with respect to which any Seller has granted approval rights to Sponsor under any Contractassets, including under the UST Credit FacilitiesTransferred IP Rights, without obtaining that are (or would otherwise be) Purchased Assets, other than (A) sales of Products in the prior approval ordinary course of such action from Sponsorbusiness consistent in all material respects with past practice or (B) Permitted Liens;
(i) waive any material claims or rights of material value that relate to the Purchased Assets;
(ii) issue, sell, pledge, create an Encumbrance acquire any material properties or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain assets (including upon conversion, exchange or exerciseIP Rights) any such Equity Intereststhat would constitute Purchased Assets other than in the ordinary course of business consistent in all material respects with past practice;
(iii) declare, set aside settle any Legal Proceeding or pay waive or satisfy any dividend material claims or make any distribution (whether rights of material value in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiariesa manner that would constitute an Assumed Liability;
(iv) directly terminate, cancel, permit to lapse, amend, waive or indirectlymodify any Governmental Authorizations, purchase, redeem or otherwise acquire except as required by any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key SubsidiaryGovernmental Authority;
(v) materially change enter into any new Contract that would be a Transferred Contract if entered into prior to the date hereof or renew any Transferred Contract, other than (A) any Contract set forth on Section 6.01(c) of its financial accounting policies the Disclosure Schedules, (B) any Contract that is cancelable upon sixty (60) days or procedures or less notice without any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Lawliability, or as modified by Parent as a result (C) any Contract renewed in the ordinary course of the filing of the Bankruptcy Casesbusiness consistent in all material respects with past practice;
(vi) adopt terminate or waive any amendments to its Organizational Documents material provision of, or permit the adoption of accelerate any amendment of the Organizational Documents of benefits or obligations under, or amend or otherwise modify in any Key Subsidiary or effect a splitmaterial respect, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereofTransferred Contract;
(vii) sell, pledge, lease, transfer, assign make or dispose commit to make any capital expenditures or incur any other payment obligation outside the ordinary course of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in business that would require payment by Purchaser following the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2)Closing and that would constitute an Assumed Liability;
(viii) (A) incur abandon, dispose of or assume permit to lapse any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiariesmaterial Transferred IP Rights;
(ix) discharge fail to take any material action necessary to protect or satisfy maintain the Transferred IP Rights or to prosecute any Indebtedness in excess of $100,000,000 pending applications for Transferred Trademark Rights or file any documents or other than the discharge information or satisfaction of pay any Indebtedness when due in accordance with its originally scheduled termsmaintenance or other fees related thereto;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule)transfer, assign or grant any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement license or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits sublicense of any Employee of Sellers rights under or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit PlanTransferred IP Rights;
(xi) modify, amend, terminate disclose or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse agree to disclose to any Seller that is a party theretoPerson, other than representatives of Purchaser or Seller in accordance with the Ordinary Course terms of Business;the Confidentiality Agreement, any Confidential Information; or
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing commit to or otherwise, to take authorize any of the foregoing actions.
(d) Notwithstanding the foregoing, nothing herein will prevent Seller or any of its Affiliates from taking actions, including (i) contributions, transfers, assignments and acceptances of assets and liabilities; (ii) the repayment of indebtedness and the extinguishment of Liens; and (iii) the cancellation of any intercompany Contracts and any Contracts that will not constitute Transferred Contracts, in each case in order to facilitate the consummation of the Transactions; provided, that none of such actions would reasonably be expected to result in any Assumed Liability.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Assertio Therapeutics, Inc), Asset Purchase Agreement (Collegium Pharmaceutical, Inc), Asset Purchase Agreement (Assertio Therapeutics, Inc)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after Between the date of this Agreement and until the earlier of the Closing Effective Time and the termination of this AgreementAgreement in accordance with Article 8, Sellers shall and shall cause each Purchased Subsidiary to except (Aw) conduct their operations as set forth in Section 6.1(a) of the Ordinary Course of BusinessCompany Disclosure Letter, (Bx) not take to the extent required by applicable Law, (y) as otherwise expressly required by any action inconsistent with other provision of this Agreement or with the consummation Ancillary Agreements, or expressly required or permitted by Section A of the ClosingCompany Disclosure Letter, or (Cz) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser the Acquirors (which consent shall not to be unreasonably withheld, conditioned or delayed), such Seller the Company will, and will cause each of its Subsidiaries to, (i) conduct its operations only in the ordinary course of business in a manner consistent with past practice, and (ii) use its commercially reasonable efforts to keep available the services of the current officers, employees and consultants of the Company and each of its Subsidiaries and to preserve the goodwill and current relationships of the Company and each of its Subsidiaries with customers, suppliers and other Persons with which the Company or any of its Subsidiaries has business relations; provided, however, that no action relating to the subject matter of any of the clauses of Section 6.1(b) that is permitted to be taken by the Company or its Subsidiaries under Section 6.1(b) without Parent’s consent shall be deemed a breach of this Section 6.1(a).
(b) Without limiting the foregoing, except (x) as set forth in the applicable subsection of or Section 6.1(b) of the Company Disclosure Letter, (y) to the extent required by applicable Law, or (z) as otherwise expressly required by any other provision of this Agreement, including but not limited to Section A of the Company Disclosure Letter, or the Real Estate Purchase Agreement, including, but not limited to, Section 6.16, the Company shall not, and shall not permit any of its Subsidiaries to, between the Key Subsidiaries date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 8, directly or indirectly, take any of the following actions without the prior written consent of the Acquirors (and in the case of clauses (i)not to be unreasonably withheld, (ix), (xiii) conditioned or (xvi), shall not permit any Purchased Subsidiary) to:delayed):
(i) take amend or otherwise change or waive any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval provision of such action from Sponsorits Organizational Documents;
(ii) issue, sell, pledge, create an Encumbrance dispose of, grant, transfer or otherwise dispose encumber any shares of capital stock of, or authorize other Equity Interests in, the issuance, sale, pledge, Encumbrance Company or disposition any of its Subsidiaries of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests of the Transferred EntitiesInterests, or grant to any person any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities of the Company or any of its Subsidiaries, except to the extent permitted pursuant to Section A of the Company Disclosure Letter.
(iii) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber or otherwise impose any Lien on any Transferred Real Estate Assets, except (x) as set forth in Schedule 6.1(b)(iii)(x) of the Company Disclosure Letter and (y) the lease, license, re-lease or re-license of any Transferred Real Estate Assets in the ordinary course of business consistent with past practices pursuant to any Contract that, if existing on the date hereof, would be a Company Lease that (A) satisfies the requirements set forth in Section 6.1(b)(iii)(y) of the Company Disclosure Letter, (B) is set forth in Section 6.1(b)(iii)(z) of the Company Disclosure Letter, or (C) (I) is terminable by the Company or any of its Subsidiaries on no more than twelve (12) months’ notice and without liability or financial obligation to the Company or any of its Subsidiaries, (II) does not involve capital expenditures by the Company or its Subsidiaries in excess of $50,000 unless such capital expenditures are contemplated by the capital expenditure budget for 2018 disclosed in Section 6.1(b)(xiii) of the Company Disclosure Letter or the capital expenditure budget for 2019 as implemented by the Company pursuant to Section 6.1(b)(xiii) and (III) does not involve any current or prospective tenant of the Company or any of its Subsidiaries that would constitute one of the top 25% of tenants by annual rental income for the Company Real Property facility at which such tenant is, or prospective tenant would be, located;
(iv) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber or otherwise impose any Lien on any other property or assets of the Company or any of its Subsidiaries (other than Intellectual Property), except: (A) as required by the express terms of any Company Material Contract in effect as of the date hereof, (B) the sale or disposition of such property or assets with a fair market value not in excess of $250,000 individually or in the aggregate, (C) the sale of inventory in the ordinary course of business, (D) the sale of obsolete or immaterial assets for scrap or (E) solely with respect to assets being sold, pledged, disposed of, transferred, leased or licensed in connection with renovations and improvements contemplated by the capital expenditures permitted by Section 6.1(b)(xiii);
(v) execute any instruments which adversely affects title to the Company Real Property or otherwise enter into, consent to or record any instrument against any Company Real Property which has a material adverse effect upon the ability of the Acquirors or their respective designees or tenants to occupy such Company Real Property after the Closing in the same manner as occupied by the Company and its Subsidiaries as of the date hereof, or seek any change in the zoning of any Company Real Property;
(vi) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise) with respect to any of its capital stock or other Equity Interests, except for cash dividends paid or cash distributions made by direct or indirect wholly-owned Subsidiaries’ of the Company to the Company or another wholly-owned Subsidiary of the Company (A) in the ordinary course of business and (B) consistent with the actions set forth in Section A of the Company Disclosure Letter with respect to the Propcos, provided, that nothing in this clause (vi) shall prohibit, restrict, or impose any condition upon the payment of dividends or other distributions by a Subsidiary to the extent such prohibition, restriction, or imposition is prohibited by the Credit Facility;
(vii) reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or obtain (including upon conversionotherwise acquire, exchange directly or exercise) indirectly, any such of its capital stock or other Equity Interests;
(iiiviii) declare, set aside merge or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among consolidate the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures Company or any of its methods Subsidiaries with any Person or adopt a plan of reporting incomecomplete or partial liquidation or resolutions providing for a complete or partial liquidation, deductions dissolution, restructuring, recapitalization or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result reorganization of the filing Company or any of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests stock or assetsassets or otherwise) any Person (or any business line or division thereof (thereof) or assets, other than acquisitions of portfolio assets inventory and acquisitions materials in the Ordinary Course ordinary course of Businessbusiness;
(x) other than extensions of credit to customers in the ordinary course of business, as set forth in the Company’s capital expenditures budget or in connection with leases or licenses with tenants made in the ordinary course of business, make any loans, advances or capital contributions to, or investments in, any other Person;
(xi) incur any Indebtedness, issue any debt securities or guarantee any obligation of any Person, other than (A) interest or fees accrued under the Credit Facility or (B) letters of credit or bonds issued by the Company or one of its Subsidiaries to Governmental Entities in the ordinary course of business consistent with past practices and in connection with workers compensation or Gaming Laws;
(xii) terminate, cancel or renew, or agree to any material amendment to, any Company Material Contract, or enter into or amend any Contract that, if existing on the date hereof, would be a Company Material Contract other than (A) in a transaction the ordinary course of business consistent with past practices and that does not involve payments to, or by, the Company or any of its Subsidiaries in excess of $300,000 per year and provided that such Contract could not reasonably be expected to impair or delay the Closing, (B) change orders or series purchase orders entered into in the ordinary course of related transactionsbusiness consistent with past practices and that are contemplated by existing Company Material Contracts and (C) where as set forth in Section 6.1(b)(xii) of the aggregate consideration paid Company Disclosure Letter;
(xiii) make (A) capital expenditures in 2018 in excess of the Company’s capital expenditure budget for 2018 disclosed in Section 6.1(b)(xiii) of the Company Disclosure Letter or received (including non-cash equity considerationB) exceeds $100,000,000capital expenditures in 2019 in excess of 110% of the capital expenditure budget for 2018 multiplied by the number of months then elapsed in 2019;
(xiv) alterexcept to the extent required by the existing terms of any Company Plan disclosed in Section 3.12(a) of the Company Disclosure Letter as in effect as of the date hereof: (A) increase or commit to increase the compensation or benefits payable or to become payable to any employee, whether through independent contractor, director or officer of the Company or its Subsidiaries; (B) add or commit to add any new participant, or increase or commit to increase the compensation or benefits payable or to become payable to any individual who is a complete participant, in the CIC Plan; (C) enter into, establish, adopt, or partial liquidationbecome obligated to contribute to any new arrangement that if in effect on the date hereof would be a Company Plan or materially amend any Company Plan (other than the types of Company Plans set forth in (D)); (D) enter into any employment, dissolutionseverance, mergerretention, consolidationchange-in-control, restructuringtermination or similar agreement with any current or former director, reorganization officer, or employee of the Company or any of its Subsidiaries, other than (x) any severance or termination agreement pursuant to the terms of the Company’s Severance Pay Plan as in effect as of the date hereof, and (y) any agreements to provide severance in the ordinary course of business consistent with past practice to employees who are not participants in the CIC Plan and provided that the severance amount for any such agreement pursuant to this clause (y) shall not exceed $25,000 per individual employee and $100,000 in the aggregate; (E) pay or award, or commit to pay or award, any bonuses or incentive compensation, or take any action to accelerate any rights or benefits or take any action to fund or in any other mannerway secure the payment of compensation or benefits under any compensation or benefit plan; (F) grant any equity-based or equity-linked awards; or (G) enter into, renew or renegotiate the legal structure or ownership of terms of, any Key Subsidiarycollective bargaining agreement, or adopt any works council, labor union or approve a plan with respect similar agreement or arrangement or become obligated to contribute to any of the foregoingMultiemployer Plan;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in make any material respect change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity;
(Axvi) Purchaser compromise, settle or agree to settle any Proceeding other than compromises, settlements or agreements of Proceedings (excluding Transaction Litigation) in the ordinary course of business that involve only the payment of monetary damages without the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any of its Subsidiaries and such monetary damages are within the respective deductible provided by the applicable insurance policy held by the Company or any successor thereto or (B) any Affiliates of Purchaser or any successor theretoits Subsidiary, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projectsas applicable;
(xvii) open directly or reopen indirectly cancel, terminate, amend or modify, or fail to maintain, any major production facility; andinsurance policies on which the Company or any of its Subsidiaries are named as insureds or additional insureds or which cover the Company or any of its Subsidiaries and their respective operations, business, properties or assets, directors, officers, managing members (or equivalent positions) and employees (however, in the event that any such policy shall be cancelled, terminated, amended, modified or shall not be maintained, the Company shall procure substantially similar substitute insurance policies in at least such amounts and against such risks as are currently covered by such policies);
(xviii) agreeenter into any new line of business in any geographic area where such business is not conducted by the Company and its Subsidiaries, or materially change the operations or business plan for any existing line of business or abandon or discontinue any existing material line of business, in writing each case as of the date hereof;
(xix) make, change or otherwiserevoke any material Tax election, change any material Tax accounting method, file any material amended Tax Return, surrender any right to take claim a material refund of Taxes (other than by the passage of time), settle or compromise any material Tax claim or liability or claim for a refund of Taxes, change any material annual Tax accounting period, enter into any material closing agreement or other material written binding agreement relating to Taxes or any material Tax sharing agreement other than the Disaffiliation Agreement, file any material Tax Return other than one prepared in a manner consistent with past practice, or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment (other than pursuant to an extension of time to file any Tax Return obtained in the ordinary course of business);
(xx) enter into any agreement with the Pension Benefit Guaranty Corporation or any trustee of a defined benefit pension plan in respect of any Controlled Group Plan that would result in a payment being required to be paid by the Company or any of its Subsidiaries, except to the extent that indemnification for such payment has been provided under the Disaffiliation Agreement or otherwise made available by the Significant Stockholder;
(xxi) form any Subsidiary, or enter into any joint venture, partnership or similar arrangement;
(xxii) enter into, amend, or modify any intercompany Contracts by and among the Company and any of its Subsidiaries;
(xxiii) except to the extent permitted pursuant to Section A of the Company Disclosure Letter, transfer assets or property (including cash) to the Aruba Subsidiaries, Insight or the Propcos; provided, that nothing in this clause (xxiii) shall prohibit, restrict, or impose any condition upon the payment of dividends or other distributions by a Subsidiary to the extent such prohibition, restriction, or imposition is prohibited by the Credit Facility; or
(xxiv) authorize or enter into any Contract or otherwise make any commitment to do any of the foregoing actionsforegoing.
(c) Nothing contained in this Agreement shall give the Acquirors or Merger Sub, directly or indirectly, the right to control or direct the operations of the Company prior to the consummation of the Merger.
Appears in 3 contracts
Samples: Merger Agreement (Gaming & Leisure Properties, Inc.), Merger Agreement (Eldorado Resorts, Inc.), Merger Agreement (Icahn Enterprises Holdings L.P.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from From and after the date of this Agreement and until the Closing (or, if the Danutec Equity is not delivered to Hexcel at the Closing, with respect to Danutec, until the earlier of (x) the Danutec Closing and (y) the termination first anniversary of the Closing), except as expressly provided in this AgreementAgreement or as Hexcel shall otherwise reasonably agree, Sellers Ciba and CGC shall and Ciba shall cause each Purchased Subsidiary of its Subsidiaries (other than CGC) to (Ai) conduct their operations the Transferred Business in the Ordinary Course ordinary course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and business consistent in all material respects with past practice; (ii) use all commercially reasonable efforts to preserve intact the present business organizations and relationships with third parties of Sellers the Transferred Business and each to keep available the services of their Subsidiaries with their respective customers, suppliers the current employees of the Transferred Business and others having significant business dealings with them, (Diii) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as sell, assign, transfer, lease, license or otherwise dispose of any such date when such representation Acquired Assets or warranty is made Deferred Assets or deemed any parts thereof except (A) pursuant to be made existing Contracts and commitments (Eincluding the Austrian Shares Contract) not take any action that would reasonably be expected to materially prevent or delay (B) in the Closing.
(b) Subject to the exceptions contained ordinary course of business consistent in clauses (i) through all material respects with past practice and (iv) notify Hexcel as to any material event of Section 6.2(a), each Seller agrees that, from and condemnation or casualty affecting any of the Acquired Assets or Deferred Assets promptly after the date of this Agreement and occurrence thereof. In addition, until the Closing (or, if the Danutec Equity is not delivered to Hexcel at the Closing, with respect to Danutec, until the earlier of (x) the Danutec Closing and (y) the termination first anniversary of this Agreementthe Closing), Ciba shall not permit any Divested Subsidiary to do any of the following, and Ciba and CGC (to the extent related to the Transferred Business) shall not do any of the following, in each case without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) toHexcel:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuanceissuance of, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectlysell, purchase, redeem or otherwise acquire (or waive any Equity Interests restrictions on any third party from taking any such action with respect to) any capital stock, bonds, debentures, notes or other securities, or authorize any stock option plan or amendment thereto or grant any options (including employee stock options), "phantom" stock or similar contractual rights, warrants or other rights or commitments entitling any Person to acquire any Equity Interests require the issuance, delivery, sale, refunding or redemption of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting incomecapital stock, deductions bonds, debentures, notes or other material items for financial accounting purposes, except as permitted securities (or that give any Person the right to receive the benefits or other similar rights enjoyed by GAAP, a SEC rule, regulation or policy accruing to holders of capital stock) or applicable Law, or as modified by Parent as a result of amend the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption terms of any amendment of the Organizational Documents of any Key Subsidiary such securities or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence agreements outstanding as of the date hereof (or entered into in compliance with this Section 6.2)hereof;
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 3 contracts
Samples: Strategic Alliance Agreement (Hexcel Corp /De/), Strategic Alliance Agreement (Ciba Geigy Corp), Strategic Alliance Agreement (Ciba Geigy LTD)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after Between the date of this Agreement and until the earlier of the Closing and the termination of this AgreementAgreement in accordance with its terms and the Closing Date (such period, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business“Interim Period”), (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses except (i) through as otherwise expressly contemplated by this Agreement, (ii) as required by Law, (iii) as required by or pursuant to any Company Material Contract, or (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without with the prior written consent of Purchaser Acquirer (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), such Seller Contributor shall not, in good faith exercise all rights and shall not permit any of powers available to it to cause the Key Subsidiaries (Company and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) toCompany Subsidiaries:
(i) take any action to operate the business of the Company and the Company Subsidiaries in the ordinary course consistent with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorpast practices;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose not to make any material change in the conduct of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Intereststheir respective businesses;
(iii) declareother than in the ordinary course of business, set aside not to enter into any Company Material Contract or pay terminate, amend or breach in any dividend material respect any Company Material Contract to which it is a party or make waive any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness material rights under any Company Material Contract to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiarieswhich it is a party;
(iv) directly or indirectlynot to sell, purchaseassign, redeem transfer, abandon, lease or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests dispose of any Seller or Key Subsidiaryassets having a fair market value in excess of $5,000,000 in the aggregate;
(v) materially change not to incur, assume or guarantee any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Casesindebtedness;
(vi) adopt not to grant any amendments to its Organizational Documents security interest in, or permit the adoption of pledge, any amendment assets of the Organizational Documents of any Key Subsidiary Company or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereofthe Company Subsidiaries;
(vii) sellnot to encumber any assets of the Company or the Company Subsidiaries as security for indebtedness;
(viii) not make any distributions other than distributions from (i) White River Hub to White River Hub’s owners (including Questar White River Hub), pledgeand (ii) distributions from any Company Subsidiary (other than Whiter River Hub) to the Company;
(ix) except as (A) required on an emergency basis or for the safety of persons or the environment or (B) in accordance with the Company Material Contracts, leasenot to make any capital expenditure in excess of $10,000,000 in the aggregate;
(x) not to settle any claims, transferdemands, assign lawsuits or dispose state or federal regulatory proceedings for damages to the extent such settlements in the aggregate assess damages in excess of $5,000,000 (other than any claims, demands, lawsuits or proceedings to the extent insured (net of deductibles), or to the extent covered by an indemnity obligation not subject to dispute or adjustment from a solvent indemnitor);
(xi) not to make, amend or revoke any Tax elections, change or consent to any change in any method of accounting for any Tax purpose, settle or compromise any material Tax liability or refund, or extend or waive the application of any Purchased Asset statute of limitations regarding the assessment or permit collection of any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrancematerial Tax, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;Law; and
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination not agree or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect commit to do any of the foregoing.
(b) During the Interim Period, Contributor shall promptly notify Acquirer in writing of:
(i) any event, condition or circumstance that could reasonably be expected to result in any of the conditions set forth in Article VI not being satisfied on or prior to the Closing Date;
(xvii) enter into any Contract change, event or occurrence that limits has had or otherwise restricts or that would could reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facilityto have a Company Material Adverse Effect; and
(xviiiiii) agreeany material breach by Contributor of any covenant, obligation or agreement contained in writing this Agreement; provided that the delivery of any notice pursuant to this Section 5.1(b) shall not limit or otherwise, to take any otherwise affect the remedies available hereunder of Contributor or the foregoing actionsconditions set forth in Article VI.
Appears in 3 contracts
Samples: Contribution, Conveyance and Assumption Agreement, Contribution, Conveyance and Assumption Agreement (Dominion Midstream Partners, LP), Purchase Agreement (Dominion Midstream Partners, LP)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after From the date of this Agreement and hereof until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to except (A) conduct their operations in the Ordinary Course of Businessas expressly contemplated by or permitted by this Agreement, (B) as set forth in Section 5.3(a) of the APL Disclosure Letter, (C) as consented to in writing by Atlas (which consent shall not be unreasonably withheld, conditioned or delayed) or (D) as required by the LMM Agreement or applicable Law, APL Sub shall not take any action inconsistent with this under the LMM Agreement or with or, to the consummation extent of APL Sub’s authority under the ClosingLMM Agreement, (C) use reasonable best efforts refuse to preserve in take any action under the Ordinary Course of Business and LMM Agreement, that would cause Laurel Mountain to conduct its business other than in all material respects in the ordinary course consistent with past practice and, to the extent consistent therewith, take any action under the LMM Agreement or, to the extent of APL Sub’s authority under the LMM Agreement, refuse to take any action under the LMM Agreement, that would cause Laurel Mountain to fail to (i) preserve intact Laurel Mountain’s present business organization, (ii) maintain in effect all of Laurel Mountain’s material licenses, permits, consents, franchises, approvals and authorizations, (iii) maintain all rights of Laurel Mountain and its Subsidiaries to all personal property used by Laurel Mountain or its Subsidiaries in the ordinary course of business consistent with past practice and (iv) maintain Laurel Mountain’s key relationships of Sellers and each of their Subsidiaries with their respective its material lessors, customers, suppliers lenders, suppliers, contractors, joint venture parties, working interest parties and others having significant material business dealings relationships with themit and with Governmental Entities with jurisdiction over oil and gas-related matters; provided, (Dhowever, that no action with respect to matters specifically addressed by any provision of Section 5.3(b) not take any shall be deemed a breach of this Section 5.3(a) unless such action to cause any would constitute a breach of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closingother provision.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after From the date of this Agreement and hereof until the earlier of the Closing and the termination of this Agreement, without except (A) as expressly contemplated or permitted by this Agreement, (B) as set forth in Section 5.3(a) of the prior written consent of Purchaser APL Disclosure Letter, (C) as consented to in writing by Atlas (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi)D) as required by the LMM Agreement or applicable Law, shall not permit any Purchased Subsidiary) toAPL Sub shall, solely to the extent of APL Sub’s authority under the LMM Agreement, not:
(i) take consent, agree to, or vote in favor of any action with respect amendment or modification of, or grant any waiver under, the LMM Agreement, or agree to which any Seller has granted approval amend to modify the Formation Agreement to the extent that such amendment or modification would adversely affect (A) the non-economic rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining LMM Agreement of a holder of the prior approval Acquired LMM Interest or (B) the economic rights under the LMM Agreement of such action from Sponsora holder of the Acquired LMM Interest in a manner that is not pro rata among all holders of an Interest in Laurel Mountain (other than the APL Retained Interest);
(ii) issuesell, selltransfer, pledge, create an Encumbrance dispose of, encumber or otherwise dispose of or authorize the issuanceagree to sell, saletransfer, pledge, Encumbrance dispose of, or disposition of encumber, any Equity Interests part of the Transferred Entities, Acquired LMM Interest or grant issue or sell or agree to issue or sell any options, warrants or other rights of any kind to purchase or obtain (including upon conversion, exchange or exercise) acquire any such Equity Interestspart of the Acquired LMM Interest;
(iii) declareconsent, set aside agree to, or pay vote in favor of, the split, subdivision, combination, reclassification or other amendment of the terms of, outstanding equity interests in Laurel Mountain;
(iv) take any dividend action that would require APL Sub to provide Wxxxxxxx Sub any Growth Capital Funding Notice for any Growth Capital Project not approved by the Management Committee or make initiate any Qualified Growth Capital Project;
(v) (A) fail to fund (or otherwise satisfy its obligation to fund), within the permitted time for such funding, as such time may be extended by the Management Committee or Wxxxxxxx Sub or its Affiliates, any Capital Contribution approved by the Management Committee, (B) fail to fund (or otherwise satisfy its obligation to fund), within the permitted time for such funding, as such time may be extended by the Management Committee or Wxxxxxxx Sub or its Affiliates, all amounts necessary to participate in all Growth Capital Projects approved by the Management Committee, or (C) fail to fund (or otherwise satisfy its obligation to fund) a Capital Contribution for a Non-Consent Budget;
(vi) consent, agree to, or vote in favor of (A) the incurrence, assumption or guarantee by Laurel Mountain of any material indebtedness for borrowed money or to the issuance by Laurel Mountain of any debt securities, except in the ordinary course of business consistent with past practice, (B) the making of any material loan, advance or capital contribution to or investment in any Person by Laurel Mountain other than a wholly owned Subsidiary of Laurel Mountain, except in the ordinary course of business consistent with past practice, or (C) the cancellation of any indebtedness for borrowed money owed to Laurel Mountain, except in the ordinary course of business consistent with past practice;
(vii) (A) consent, agree to, or vote in favor of, the sale of any material assets of Laurel Mountain or its Subsidiaries, except in the ordinary course of business consistent with past practice, (B) consent, agree to, or vote in favor of, the purchase or acquisition of any material properties or assets, including acquisition by purchase or by any other manner, of any Person or division, business or securities interest in any Person, except in the ordinary course of business consistent with past practice, or (C) consent, agree to, or vote in favor of, Laurel Mountain making any investments in, or capital contributions to, any other Person other than a wholly owned Subsidiary of Laurel Mountain;
(viii) consent, agree to, or vote in favor of, any distribution (whether in cash, securities stock or other property or by allocation of additional Indebtedness property) to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each caseMembers, except in the Ordinary Course ordinary course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance business consistent with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiariespast practice;
(ix) discharge consent, agree to, or satisfy any Indebtedness vote in excess favor of, the adoption of $100,000,000 a plan or agreement of complete or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other than the discharge or satisfaction reorganization of any Indebtedness when due in accordance with its originally scheduled termsLaurel Mountain;
(x) enter into any agreement or transaction with Wxxxxxxx Sub or its Affiliates, or consent or agree to any transaction or the entry of any agreement between Laurel Mountain or its Subsidiaries, on the one hand, and Wxxxxxxx Sub or its Affiliates, on the other hand, in each case to the extent such agreement or transaction relates to the transfer by APL Sub of the Acquired LMM Interest to any Person other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Planan Atlas Group member;
(xi) modifyconsent, amendagree to, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) vote in favor of, any material respect increase in a manner that is adverse compensation and benefits payable or provided to any Seller that is a party theretoLaurel Mountain’s (or its Subsidiaries’) current or former directors, other than officers, consultants or employees or trigger the forgiveness of Indebtedness owed by such individuals, except in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(xii) enter into any Seller Material Contract voting agreement or other than as contemplated by Section 6.7;agreement (whether with any Member or otherwise) providing any party any right of first refusal, right of first offer or restriction on alienation with respect to the Acquired LMM Interest; or
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) authorize any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiaryof, or adopt commit to do or approve a plan enter into any binding Contract with respect to any of the foregoing;foregoing actions in clauses (i) through (xii).
(xvc) enter into any Contract that limits or otherwise restricts or that would reasonably be expected toFrom the date hereof until the earlier of the Closing and the termination of this Agreement, after the Closing, restrict or limit APL Sub shall provide notice as promptly as practicable (and in any material respect (Aevent prior to Closing) Purchaser or any to Atlas of its Subsidiaries receipt of (i) any proposed new Growth Capital Project, Operating Budget or any successor thereto Growth Capital Budget upon which the Management Committee is to vote or (Bii) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsGrowth Capital Funding Notice.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Atlas Pipeline Partners Lp), Purchase and Sale Agreement (Atlas Pipeline Holdings, L.P.), Purchase and Sale Agreement (Atlas Energy, Inc.)
Conduct of Business. The Shareholder and KS shall use their reasonable best efforts to cause the business and affairs of the Corporation and its Subsidiaries to be operating in the ordinary course as currently conducted and with a view to the best interests of the Corporation and its public shareholders and, in furtherance of the foregoing, not to take any action that would or would reasonably be expected to result in non-satisfaction of a condition of the Offer (unless waived by the Offeror) without the prior written consent of the Offeror. Without limiting the generality of the foregoing, unless the Offeror otherwise agrees in writing or as expressly set forth in this Agreement, the Shareholder and KS shall use their reasonable best efforts to ensure that the Corporation shall not, directly or indirectly, do, permit any of its Subsidiaries to do or permit to occur (or enter into any agreement or arrangement whether or not subject to conditions with respect to) any of the following:
(a) Except as issue, grant, sell, transfer, pledge, lease, dispose of, encumber, acquire or redeem:
(i) otherwise expressly contemplated by any Corporation Shares or permitted under this Agreement, including other securities of the DIP FacilityCorporation or its Subsidiaries; or
(ii) disclosed on Section 6.2 any material property or assets of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (Corporation or any other court or other Governmental Authority in connection with any other bankruptcyof its Subsidiaries, insolvency or similar proceeding filed by or in respect except for (A) shares issued upon exercise of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after options outstanding on the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with shares that may be issued in respect of (x) the consummation Directors Share Unit Plan of the ClosingCorporation and the Executives Share Option Plan of the Corporation, (Cy) use reasonable best efforts any plan in existence on the date hereof providing for the issuance of shares or share equivalents to preserve in directors or employees of HI or (z) any securities of the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect Corporation or HI outstanding as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until under which the earlier Corporation or HI is obligated to deliver shares, as expressly required by the Articles of Incorporation of the Closing Corporation or the Restated Certificate of Incorporation of HI, as the case may be, and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval terms of such action from Sponsorsecurities;
(iib) issue, sell, pledge, create an Encumbrance amend or otherwise dispose of or authorize propose to amend the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants constitutional documents (including articles or other rights to purchase organizational documents or obtain (including upon conversion, exchange by-laws) of it or exercise) any such Equity Interestsof its Subsidiaries;
(iiic) declare, make or set aside or pay any amounts for any dividend or make any other distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with property) in respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any securities of its financial accounting policies or procedures it or any of its methods Subsidiaries except for scheduled interest payments on indebtedness of reporting income, deductions it or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation any of its Subsidiaries that is outstanding on the date of this Agreement (without giving effect to any amendment to or policy or applicable Lawwaiver of the terms thereof), or as modified by Parent as a result incurred in compliance with the express provisions of the filing of the Bankruptcy Casesthis section 5.D;
(vid) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a splitincur, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sellcreate, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse guarantee or otherwise become liable or responsible (whether directlyfor, contingently or otherwise) for amend or restate the obligations of material terms of, any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary that individually or among in the Subsidiariesaggregate exceeds $1,000,000;
(ixe) discharge enter into any statutory arrangement, merger, amalgamation, consolidation, liquidation, dissolution, or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled termsbusiness combination;
(xf) other than as is required by settle or compromise any material legal or regulatory proceeding or voluntarily become subject to or amend the material terms of a Parent Employee Benefit Plan and Policy any Governmental Order; and
(in effect on g) make any changes to existing accounting practices, except as the date hereof and set forth on Section 4.10 regular, independent auditors of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on Corporation advise the date hereof) audit committee of the UAW Collective Bargaining Agreement or consistent with board of directors of the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be Corporation are required by applicable Law or TARP Canadian generally accepted accounting principles, or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsorwrite down, (A) increase write up or write off the compensation or benefits book value of any Employee of Sellers or any Purchased Subsidiary (assets in amounts that, in aggregate, exceed $1,000,000 except for increases depreciation and amortization in salary or wages in the Ordinary Course of Business accordance with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsCanadian generally accepted accounting principles.
Appears in 3 contracts
Samples: Acquisition Agreement (Hollinger Inc), Tender and Shareholder Support and Acquisition Agreement (Hollinger International Inc), Tender and Shareholder Support and Acquisition Agreement (Hollinger Inc)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under as provided in this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of as set forth in the Sellers’ Partnership Disclosure Schedule; , (iii) approved as required by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcyapplicable Law, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from as provided in any changes to applicable Laws, from and after Partnership Material Contract in effect as of the date of this Agreement and until (including the earlier of the Closing and the termination of this Partnership Agreement, Sellers shall and shall cause each Purchased Subsidiary ) or (v) as consented to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing by Parent (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), during the period from the date of this Agreement until the Effective Time, each of the Partnership GP and the Partnership shall, and shall cause each of their respective Subsidiaries to, conduct its business in the ordinary course of business consistent with past practice. Except (i) as provided in this Agreement, (ii) as required by applicable Law, or (iii) as consented to in writing by the Partnership (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, Parent shall not cause any of the Partnership GP, the Partnership or their respective Subsidiaries to conduct their respective business other than in the ordinary course of business consistent with past practice, and shall not take any action to cause and shall not permit the Partnership GP to take any action to cause:
(i) the amendment of the Partnership Agreement or the Partnership GP LLC Agreement, in each case, to the extent that any such Seller amendment would reasonably be expected to prohibit, prevent or materially hinder, impede or delay the ability of the parties to satisfy any conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement (including the KMP Merger and the KMR Merger) or such amendment would adversely impact the Partnership Unaffiliated Unitholders in any material respect; or
(ii) the issuance of any Partnership Interest to Parent or any Affiliate of Parent, including in accordance with any reset of the Incentive Distribution Rights in accordance with Section 5.11 of the Partnership Agreement.
(b) Except (i) as provided in this Agreement, the KMP Merger Agreement or the KMR Merger Agreement, (ii) as set forth in the Parent Disclosure Schedule, (iii) as required by applicable Law, (iv) as provided in any Parent Material Contract in effect as of the date of this Agreement or (v) as consented to in writing by the Partnership (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, conduct its business in the ordinary course of business consistent with past practice. Without limiting the generality of the foregoing, except (i) as provided in this Agreement, the KMP Merger Agreement or the KMR Merger Agreement, (ii) as set forth in the Parent Disclosure Schedule, (iii) as required by applicable Law, (iv) as provided in any Parent Material Contract in effect as of the date of this Agreement or (v) as consented to in writing by the Partnership (such consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to the Effective Time, Parent shall not, and shall not permit any of the Key its Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take (A) amend Parent’s certificate of incorporation or bylaws in any action with respect manner that would reasonably be expected to which any Seller has granted approval rights to Sponsor under any Contractprohibit, including under prevent or materially hinder, impede or delay the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests ability of the Transferred Entitiesparties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement (including the KMP Merger and the KMR Merger) or have an adverse effect on the value of the Merger Consideration to be received by the Partnership Unitholders in the Merger; provided that the Charter Amendment shall in no way be restricted by the foregoing, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iiiB) declare, set aside or pay any dividend or make any distribution (whether payable in cash, securities stock or property in respect of any capital stock, other property than regular quarterly cash dividends on the Parent Common Stock in the ordinary course of business consistent with past practice and other than dividends or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value distributions with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among a record date after the Purchased SubsidiariesEffective Time;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(xii) other than as is required by the terms transactions exclusively between wholly owned Subsidiaries of a Parent Employee Benefit Plan and Policy (or in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent connection with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as transactions contemplated by Section 6.7) in any material respect in 1.2 of the Parent Disclosure Schedule, adopt a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course plan or agreement of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidationconsolidation or other reorganization, restructuringin each case, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected toto prohibit, after prevent or materially hinder, impede or delay the Closing, restrict or limit in any material respect (A) Purchaser or ability of the parties to satisfy any of its Subsidiaries the conditions to or any successor thereto the consummation of the Merger or the other transactions contemplated by this Agreement (Bincluding the KMP Merger and the KMR Merger) any Affiliates or have an adverse effect on the value of Purchaser or any successor thereto, the Merger Consideration to be received by the Partnership Unitholders in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic areaMerger;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviiiiii) agree, in writing or otherwise, to take any of the foregoing actions, or take any action or agree, in writing or otherwise, to take any action, including proposing or undertaking any merger, consolidation or acquisition, in each case, that would reasonably be expected to prohibit, prevent or materially hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement (including the KMP Merger and the KMR Merger); or
(iv) acquire, agree to acquire or make any proposal or offer to acquire, beneficially or of record, any Partnership Interest or the right to direct the voting of any Partnership Interest, or any rights or options to acquire any Partnership Interest.
Appears in 3 contracts
Samples: Merger Agreement (El Paso Pipeline Partners, L.P.), Merger Agreement (Kinder Morgan, Inc.), Merger Agreement (Kinder Morgan, Inc.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by From and after the date hereof until the Closing Date, neither Seller shall, and shall cause DCS not to, engage in any practice, take any action or permitted under this Agreemententer into any transaction outside the ordinary course of business without the prior approval of Purchaser, including which approval shall not be unreasonably withheld or delayed, and shall continue to operate the DIP Facility; (ii) disclosed on Section 6.2 Seller Business in the ordinary course consistent with past practices. In furtherance and not in limitation of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Lawsforegoing, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreementhereof, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) DCS to:
(i) take any action operate the Seller Business in accordance with respect the Authorizations, and comply in all material respects with all Laws applicable to which any Seller has granted approval rights to Sponsor under any Contractit, including under the UST Credit Facilities, without obtaining regulations of the prior approval of such action from SponsorFCC and any state body having jurisdiction over the Seller Business or any Purchased Asset;
(ii) issueexcept as disclosed on SCHEDULE 9.04(a)(ii), selland except for inventory sold, pledgeor retirements of assets, create an Encumbrance or otherwise dispose in each case in the ordinary course of or authorize the issuancebusiness, refrain from making any sale, pledgelease, Encumbrance transfer or other disposition of any Equity Interests of the Transferred EntitiesPurchased Assets other than in connection with replacements with assets of like use and value, or grant any optionswith the prior written approval of Purchaser, warrants which approval will not be unreasonably withheld or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interestsdelayed;
(iii) declarerefrain from amending in any material respect, set aside or pay terminating any dividend of the Assumed Contracts, without Purchaser's prior written approval, which approval will not be unreasonably withheld or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiariesdelayed;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights maintain insurance on the Purchased Assets comparable to acquire any Equity Interests of any Seller or Key Subsidiarythat maintained prior to the date hereof;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Casesmaintain their books and records in accordance with prior practice;
(vi) adopt take all actions necessary to maintain all of their rights and interest in, and the validity of, the FCC Authorizations and not permit any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents FCC Authorizations that are Purchased Assets to expire or to be surrendered or voluntarily modified in a manner materially adverse to the operation of the Cellular System, or take any Key Subsidiary action which would reasonably be expected to cause the FCC or effect a splitany other governmental authority to institute proceedings for the suspension, combination revocation or reclassification limitation of rights under any of the FCC Authorizations that are Purchased Assets; or fail to prosecute with commercially reasonable due diligence any pending applications to any governmental authority; and provide to Purchaser copies of all applications, correspondence, pleadings and other adjustment of Equity Interests of any Purchased Subsidiary documents furnished to or a recapitalization thereof;received from the FCC relating to the Cellular System.
(vii) sell, pledge, lease, transfer, assign or dispose notify Purchaser in writing promptly after learning of the institution of any material action against either Seller relating to the Cellular System in any court, or any action against either Seller relating to the Cellular System before the FCC or any other governmental agency, and notify Purchaser in writing promptly upon receipt of any administrative or court order relating to the Purchased Asset Assets or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2)Cellular System;
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securitiesmaintain the Seller Business's equipment, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines systems and other fixed assets as necessary to maintain the Seller Business's reliability standards, footprint coverage and network capacity in accordance with prior practice of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiarieseach Seller;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due continue in accordance with its originally scheduled termspast practice all marketing and promotions relating to the maintenance and growth of subscribers of the Seller Business;
(x) other than as is required by maintain the terms of a Parent Employee Benefit Plan relations with the suppliers, customers and Policy (in effect on the date hereof and set forth on Section 4.10 distributors of the Sellers’ Disclosure Schedule), Seller Business and any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent others having business relations with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;; and
(xi) modify, amend, terminate not cause or waive permit to occur any rights under any Affiliate Contract of the events or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by occurrences described in Section 6.77.14(c) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;hereof.
(xiib) enter into The Purchaser hereby acknowledges and agrees that from and after the date hereof, either Seller may take any Seller Material Contract other than as contemplated actions determined by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan Sellers to be appropriate with respect to any the Excluded Assets, including selling the Excluded Assets.
(c) Each Seller shall use all commercially reasonable efforts to keep available the services of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any System Employees and of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any all agents of the foregoing actionsSeller Business.
Appears in 3 contracts
Samples: Asset Purchase Agreement (American Cellular Corp /De/), Asset Purchase Agreement (Dobson Communications Corp), Asset Purchase Agreement (Acc Acquisition LLC)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of Until the Closing and the termination of this AgreementDate, Sellers shall Seller shall, and shall cause each Purchased Subsidiary its Subsidiaries to, solely with respect to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation operation of the Closing, Business (C) use reasonable best efforts to preserve unless Purchaser shall otherwise consent in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing (which consent shall not be unreasonably withheld, conditioned or delayed) or except as otherwise contemplated hereby or by any Transition Agreement or as disclosed on Schedule 6.2), such Seller shall not, and shall not permit any of to the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) toextent permitted by applicable Law:
(a) use it reasonable best efforts to: (i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contractoperate the Business in the Ordinary Course, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issuepreserve its present material business operations, sellorganization and goodwill, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declarekeep available the services of its present officers and key employees, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectlypreserve its present relationships with Persons having business dealings with it, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items maintain all Permits necessary for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result the operation of the filing of the Bankruptcy Cases;
Business and (vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except for changes resulting from transactions in the Ordinary Course of Business or pursuant to a Contract in existence as from the seasonality of the date hereof Business, keep the level of its inventories, supplies, accounts receivable and accounts payables reasonably consistent in all material respects with past practice;
(b) not incur, guarantee or entered into assume any Indebtedness in compliance connection with this Section 6.2the Business, other than Indebtedness in an amount in excess of U.S.$20 million in the aggregate, in each case only to the extent such Indebtedness may be prepaid without penalty or premium at any time and does not result in any Lien on the Assets that will not be eliminated at Closing (unless otherwise agreed to by Purchaser);
(viiic) (A) incur not dispose of or otherwise transfer, or incur, create or assume any Indebtedness for borrowed money Lien (other than Permitted Exceptions) on any asset of the Business, other than (i) sales of inventory and standing timber, (ii) dispositions of worn out or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness obsolete assets in an amount not in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages 1,000,000 in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor theretoaggregate, in the case of each of clause (i) and (ii) in the Ordinary Course and not inconsistent with the Harvesting Plan, or (iii) sales of Timberlands pursuant to the Timberlands sales set forth on Schedule 6.2(c);
(d) not enter into, amend, terminate, renew or supplement any contract that constitutes (or, in the case of contracts not in existence on the date hereof, would constitute) a Material Business Contracts, except in the Ordinary Course;
(e) not engage in any transactions with, or enter into any Business Contracts with, any Affiliate of Seller in connection with the Business, except for any such transactions or Business Contracts in the Ordinary Course on terms no less favorable than would be obtained in an arms’ length third-party transaction and that are terminable at will by Seller, CP or the Acquired Company party thereto at any time without penalty or premium upon not greater than 30 days’ notice;
(f) not enter into, adopt, amend, renegotiate or terminate any (A) Employee Benefit Plan or plan that would be an Employee Benefit Plan if in effect on the date hereof or (B) Business Contract relating to the compensation, benefits or severance entitlement of any Acquired Company Employee or Business Employee, except (i) to the extent required by Law or any existing Business Contracts or Employee Benefit Plans, (ii) for any such actions taken in the Ordinary Course and which would not result in an increased annual cost to the Business in excess of $1,000,000 and (iii) for increases applicable to Corporate Business Employees that would not result in increased annual liability to the Business in excess of $150,000 in the aggregate;
(g) except to the extent required by Law, including any bargaining obligations imposed by the National Labor Relations Act, or the terms of the applicable Collective Bargaining Agreements, (i) not enter into any new collective bargaining agreements, or amend or modify any existing Collective Bargaining Agreements, that would materially affect the Purchaser’s interests following the Closing Date, provided, that following consultation with the Purchaser, Seller may commence negotiations on the Collective Bargaining Agreements relating to the Chillicothe site if the Closing has not occurred by May 31, 2005, and thereafter enter into new collective bargaining agreements relating to the Chillicothe site and (ii) during any and all negotiations of new collective bargaining agreements or existing Collective Bargaining Agreements, advise the Purchaser of the status and details of the negotiations on a reasonable basis, as dictated by such negotiations (or at such times that Purchaser in writing reasonably requests of Seller the status and details of such negotiations), and in advance of execution of any agreement, and allow a designated representative of Purchaser to consult on such negotiations;
(h) not enter into any Contract pursuant to which it agrees to indemnify any Person in any material respect (except in the Ordinary Course) or to refrain from competing with any Person or from engaging or competing in any line of business or carrying on any business in any geographic areaarea or during any period of time;
(xvii) not revalue any portion of its assets, properties or businesses including, without limitation, any write-down of the value of inventory or other assets or any write-off of notes or accounts receivable, except as required by GAAP or in connection with the preparation and delivery of the Regulation S-X Financial Statements;
(j) not change, in any material respect, any of their accounting principles, practices, methodologies or policies (including any reserving and depreciation methodologies, practices and policies) used in connection with the Business, the Assets and Assumed Liabilities;
(k) except as otherwise required by GAAP, not release any material non-cash reserves;
(l) not issue or sell, or authorize for issuance or sale, or grant any rights with respect to, the securities of any Acquired Company, or alter any term of any of the outstanding securities of any Acquired Company;
(m) not institute or settle any Legal Proceeding that would have a material adverse impact on the operation of the Business or impose any material non-monetary obligation on the Business after Closing;
(n) not institute any material change in the methods of purchase, sale, lease or other accounting or engage in any activity which would accelerate the collection of accounts receivable, accelerate or delay the payment of the accounts payable, or increase, reduce or otherwise affect the amount of inventory (including raw material, packaging, work-in-process, or finished goods) on hand, other than as a result of the seasonality of the Business;
(o) continue to establish reserves with respect to workers’ compensation, litigation, environmental matters and other contingent Liabilities in accordance with GAAP;
(p) maintain levels of insurance covering the operations of the Business and the Assets in full force and effect, with at least such policy limits, deductible amounts and overall scopes of coverage as are in effect on the date hereof, consistent with past practice;
(i) use its commercially reasonable efforts to maintain the Assets in accordance with its normal and customary maintenance practices and (ii) make capital expenditures substantially in the amounts and at the times set forth in the 2004 and 2005 capital budgets of the Business attached to Schedule 6.2(q) (the “Capital Budgets”), other than capital expenditures relating to information technology at Business locations;
(r) not enter into commitments for new capital expenditures in excess of $5 million in the aggregate to the extent not otherwise contemplated substantially in the amounts and at the times set forth in the Capital Budgets;
(s) not acquire (by merger, exchange, consolidation, acquisition of stock or assets or otherwise) any Person or division or material assets thereof, whether or not engaged in a business similar to the Business;
(t) not sell, transfer, or grant licenses of Intellectual Property to any Person outside the Ordinary Course or allow any material registered Intellectual Property to lapse, expire, or become abandoned;
(u) not amend the organizational documents of any Acquired Company;
(v) with respect to state and local Taxes of any Acquired Company for a Straddle or Post-Closing Tax Period, not (i) make or change any Tax election, (ii) change an annual Tax accounting period, (iii) adopt or change any Tax accounting method except as required by applicable Law, (iv) file any amended Tax Return, (v) enter into any Contracts for capital expendituresTax closing agreement, exceeding $100,000,000 in (vi) settle any material tax claim or assessment, (vii) surrender any right to claim a Tax refund, or (viii) consent to the aggregate in connection with extension or waiver of any single project limitation period applicable to any material Tax claim or group of related projectsassessment;
(xviiw) open or reopen any major production facilityoperate the Timberlands in the Ordinary Course, including (i) conducting their ongoing timber harvest operations on the Timberlands substantially in accordance with the Harvesting Plan, and (ii) performing maintenance of roads, drainage systems, fire protection and prevention as well as stand establishment activities consistent with past practice; and
(xviiix) agree, in writing or otherwise, not agree to take any action or actions prohibited by any of the foregoing actionsclauses (a) through (v).
Appears in 3 contracts
Samples: Equity and Asset Purchase Agreement (NewPage Holding CORP), Equity and Asset Purchase Agreement (NewPage Energy Services LLC), Equity and Asset Purchase Agreement (Meadwestvaco Corp)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including During the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and until to the earlier Closing, except (i) as set forth in Section 5.2 of the Closing and the termination of Seller Disclosure Letter, (ii) as expressly contemplated or permitted by this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (Aiii) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement as required by applicable Law or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after as the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written Buyer shall otherwise consent of Purchaser in writing (which such consent shall not to be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause its Subsidiaries to, (x) conduct its business in all material respects in the Ordinary Course of Business and (y) use its commercially reasonable efforts to maintain its existing relations with customers, suppliers, creditors and employees that, in each case, may be material to the Acquired Business as a whole.
(b) During the period from the date of this Agreement to the Closing, except (i) as set forth in Section 5.2 of the Seller Disclosure Letter, (ii) as expressly contemplated or permitted by this Agreement, (iii) as required by applicable Law, (iv) as the Buyer shall otherwise consent in writing (such Seller consent not to be unreasonably withheld, conditioned or delayed), or (v) in the Ordinary Course of Business, the Company shall not, and shall cause its Subsidiaries not permit to, take any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tofollowing actions:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledgetransfer, create an Encumbrance lease, license or otherwise dispose of or authorize any assets material to the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain Company (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key SubsidiaryIntellectual Property), except for dividends and distributions among the Purchased Subsidiaries;
(ivA) directly or indirectlysales of surplus equipment, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests (B) sales of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except inventory in the Ordinary Course of Business or pursuant to a Contract in existence as of (C) sales, leases or other transfers among the date hereof (or entered into in compliance with this Section 6.2)Acquired Entities;
(viiiii) (A) incur or assume enter into any Indebtedness commitment(s) for borrowed money or issue capital expenditures of any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines Acquired Entity with an aggregate value in excess of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility $500,000 or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwisefail to make the capital expenditures which are listed on Section 5.2(b)(ii)(B) for of the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the SubsidiariesDisclosure Letter;
(ixiii) discharge acquire any Person or satisfy division or business line thereof, by merger or consolidation, purchase of assets or equity interests, or by any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled termsmanner;
(xiv) other than as is required by create or permit the terms creation of a Parent Employee Benefit Plan and Policy (in effect any Lien on the date hereof and set forth on Section 4.10 any material assets of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined)Acquired Entities, except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit PlanPermitted Liens;
(xiv) modify, amend, terminate cause or waive permit any rights under any Affiliate Contract amendments to the Organizational Documents of the Acquired Entities or Seller Material Contract (except adopt a plan of complete or partial liquidation or resolutions providing for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any Acquired Entity or consummating any such transaction;
(vi) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its Capital Stock, or repurchase or otherwise acquire, directly or indirectly, any shares of its Capital Stock;
(vii) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any shares of Capital Stock or securities convertible into, or subscriptions, rights, warrants or options to acquire shares of Capital Stock, or other manner, the legal structure or ownership contracts of any Key Subsidiarycharacter obligating it to issue any such shares or other convertible securities;
(viii) declare any dividend or distribution on its Capital Stock, except for dividends or distributions of cash;
(ix) make any loans or advances to, or adopt any investments in or approve capital contributions to, or forgive or discharge in whole or in part any outstanding loans or advances to, any Person (other than another Acquired Entity);
(x) except for borrowings under the Credit Facility, incur any Indebtedness for borrowed money or guarantee any such Indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(xi) (A) enter into any new, or amend or terminate any existing, Employee Plan or Employment Agreement or (B) hire any additional employees except to fill a plan vacancy in the Ordinary Course of Business or terminate the employment of any employee (other than for cause);
(xii) enter into, establish, amend or extend (or become obligated under) any collective bargaining or other labor agreement with any labor union or employee representative;
(xiii) make any material change in any method of accounting or accounting practice or policy used by the Company in the preparation of their financial statements, other than changes required by GAAP or applicable Law;
(xiv) make any change in Acquired Business’s cash management practices or its policies and practices with respect to any collection of the foregoingaccounts receivable, establishment of reserves for uncollectable receivables, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue or acceptance of customer deposits;
(xv) settle any Proceeding, other than settlements (A) that do not involve non-monetary relief or admission on behalf of the Acquired Entities and (B) involve less $100,000 in the aggregate;
(xvi) make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of the Acquired Entities or the Buyer in respect of any post-Closing Tax period;
(xvii) terminate or materially modify or amend any Material Agreement or enter into any Contract that limits would have been a Material Agreement if entered into prior to the date of this Agreement, in each case except in the Ordinary Course of Business (provided, however, that no entry into any such Contract or otherwise restricts termination, modification or that amendment of any Material Agreement, whether or not in the Ordinary Course of Business, shall be permitted without the prior written consent of Buyer if such entry into, termination or amendment, would be, or would reasonably be expected to give rise to, after result in or serve as a basis for any other action or omission under this Section 5.2(b) or otherwise under this Agreement requiring the prior written consent of Buyer); or
(xviii) agree or commit to take any action described in this Section 5.2(b).
(c) Nothing contained herein shall give to the Buyer, directly or indirectly, the right to control or direct any of the Acquired Entities’ operations or businesses prior to the Closing, restrict and the Acquired Entities shall exercise, subject to the terms and conditions hereof, complete control and supervision of their operations and businesses until the Closing.
(d) Prior to the Closing, Seller or limit Company shall promptly notify Buyer in writing of any (i) breach of any covenant or obligation of Seller or Company under this Agreement; (ii) fact, circumstance, condition, event, change or development that (A) has caused or is reasonably likely to cause any representation or warranty of the notifying party contained herein to become misleading, inaccurate or false in any material respect (A) Purchaser or that would have caused or constituted a breach in any material respect if such fact, circumstance, condition, event, change or development had occurred, arisen or existed on or before the date of its Subsidiaries or any successor thereto this Agreement or (B) is reasonably likely to make the timely satisfaction of any Affiliates condition to Closing set forth in Section 6.1 or Section 6.2 impossible or unlikely; (iii) actual, suspected or potential any violation of Purchaser any applicable Law related to the operation of the Acquired Business, which actual or apparent violation by its nature could reasonably warrant voluntary disclosure to a Government Authority; (iv) notice or other communication from any successor thereto, in third party alleging that the case consent or approval of each of clause (A) such Person is or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate may be required in connection with the transactions contemplated hereby; (v) Proceeding threatened, commenced or asserted against or with respect to Acquired Business or the transactions contemplated hereby; (v) material default under any single project Material Agreement or group event which, with notice or lapse of related projects;
time or both, would become such a default on or before the Closing Date; and (xviivi) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsSeller Material Adverse Effect.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Flotek Industries Inc/Cn/)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after From the date of this Agreement and until the earlier of (i) the Closing and Effective Time or (ii) the termination of this AgreementAgreement in accordance with Article VII hereof, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with except as otherwise expressly contemplated by this Agreement or with consented to in writing by Bankers:
(a) the consummation Company and each of the Closing, (C) Subsidiaries shall operate the businesses conducted by them in the ordinary and usual course and shall use their commercially reasonable best efforts to preserve in the Ordinary Course of Business intact their present business organizations and in all use commercially reasonable efforts to preserve their relationships with material respects the present relationships of Sellers customers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.suppliers;
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller Company shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) Subsidiary to:
(i) take change any action with respect to which any Seller has granted approval rights to Sponsor under any Contractof the accounting principles or practices used by it, including under the UST Credit Facilities, without obtaining the prior approval except as may be required as a result of such action from Sponsora change in law or in generally accepted accounting principles;
(ii) issuepay, selldischarge or satisfy any claims, pledgeliabilities or obligations (absolute, create an Encumbrance accrued, asserted or otherwise dispose unasserted, contingent or otherwise), other than (A) the payment, discharge, or satisfaction in the ordinary course of or authorize the issuancebusiness and consistent with past practice, sale, pledge, Encumbrance or disposition (B) payment of any Equity Interests liabilities recorded on the balance sheet as of June 30, 2002, (C) payment of reasonable expenses incurred in connection with activities of the Transferred EntitiesSpecial Committee and with the Offer and the Merger and (D) payment of amounts paid to resolve the class action lawsuits currently pending against the Company consolidated under Case No. 8:00-CV-2013-T-26MAP; provided, however, that Bankers will not unreasonably withhold, delay or grant condition its consent to any options, warrants or other rights actions proposed to purchase or obtain be taken by the Company which would otherwise be prohibited by this clause (including upon conversion, exchange or exercise) any such Equity Interestsii);
(iii) declare, set aside issue any shares of its Company Common Stock or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation its preferred stock except pursuant to Company Stock Options outstanding as of additional Indebtedness to any Seller or any Key Subsidiary without receipt the date of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;this Agreement; or
(iv) directly amend either its articles of incorporation or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiaryby-laws;
(vc) materially change any except for actions made in the ordinary course of its financial accounting policies or procedures or any of its methods of reporting incomebusiness consistent with past practice, deductions or other material items for financial accounting purposesthe Company shall not, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or and shall not permit any Purchased Asset Subsidiary to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation of its directors, officers or benefits of employees, pay any Employee of Sellers or bonus, grant any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect option to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel)purchase any Company Common Stock, (B) grant any severance or termination pay to to, or enter into or amend any Employee employment or severance agreement with, any director, officer or other employee of Sellers the Company or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel)Subsidiary, (C) establish, adopt, enter intointo or amend any collective bargaining, amend bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or terminate other plan, agreement, trust, fund, policy or arrangement for the benefit of any Benefit Plan (including any current or former directors, officers or employees, materially change to any actuarial assumption or other assumption used to calculate funding obligations with respect to any Benefit Plan pension or any retirement plan, or change to the manner in which contributions to any Benefit Plan such plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs except, in each case, as may be required by law or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for contractual commitments which are existing as of the funding under any Benefit Plan, (F) forgive any loans to Employees date of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Planthis Agreement;
(xid) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or such actions as contemplated may be required by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other mannerlaw, the legal structure or ownership of Company shall not, and shall not permit any Key SubsidiarySubsidiary to, or adopt or approve a plan with respect to take any action that will result in any of the foregoing;
representations and warranties of the Company set forth in Section 1.02 and Article III of this Agreement becoming untrue or and, except for actions as may be required by law, neither Bankers (xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (AAffiliates) or (B), from engaging or competing the Company will take any action which will result in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsconditions to the Merger set forth in Article VI not being satisfied.
Appears in 2 contracts
Samples: Merger Agreement (Bankers Insurance Group Inc), Merger Agreement (Insurance Management Solutions Group Inc)
Conduct of Business. The Sellers shall procure that each Nordic Company shall comply, unless prohibited by law, in each case during the period from the Signing Date until the Closing Date (the “Pre-Closing Period”) with each of the following undertakings (the “Conduct of Business Undertakings”):
(a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations businesses in the Ordinary Course of Businessordinary course and in all material respects consistent with applicable laws, (B) not take any action inconsistent with this Agreement or with the consummation of the Closingregulations and administrative requirements and past practice, (C) to use reasonable best efforts to maintain all material authorizations and licenses necessary for the conduct of their respective businesses, to use all reasonable efforts to preserve intact their business organizations and to use reasonable efforts to renew any expiring Material Distribution Agreements or Material Content Agreements in the Ordinary Course ordinary course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries business consistent with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.past practice;
(b) Subject not to enter into or amend any loans granted to or made by a Target Company to the exceptions contained Sellers (or any of them) or any other company of the P7S1 Group (other than with respect to the draw-down of existing and/or additional loans, or the repayment of loans permitted under Section 5 above);
(c) not to enter into or amend any transfers, contracts, licenses, leases, sales or supplies resulting in clauses any payments, transfers or benefits made or granted or to be made or granted by a Target Company to the Sellers (ior either of them) through or any other company of the P7S1 Group other than on an arm's length basis in the ordinary course of business consistent with past practice;
(ivd) not to pass any resolutions of its shareholders or any class of its shareholders outside the ordinary course of business or enter into any dissolution, de-registration or winding up proceedings;
(e) not to form any Subsidiary or acquire any interest in shares or other securities in any entity or form, participate in or terminate any participation in, any partnership or joint venture, except for measures in connection with the Aggregate Media Funds in Sweden consistent with past practice;
(f) not to amend, vary, terminate or enter into a Material Contract other than in accordance with Section 6.2(a7.2(a) above;
(g) not to appoint or (other than for important cause or ill-health) remove any managing director of any Nordic Company;
(h) not to employ or engage any person who once employed would be a Key Employee or (other than for important cause or ill-health) dismiss (or give notice of dismissal to) any such person or any Key Employee (except where the engagement or dismissal process commenced before the Signing Date and relevant details have been Disclosed), each Seller agrees that, from and after or otherwise materially amend or vary the date terms of this Agreement and until the earlier employment of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned any such person or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:Employee;
(i) take not to make material alterations to the standard terms and conditions of employment (including remuneration and benefits) of any action of its directors, officers or employees other than (i) salary increases not exceeding 3% (in words: three percent) in average over the entire Target Group provided that such increases are, on an overall basis, consistent with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under past practice and (ii) alterations in accordance with the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorapplicable collective labor agreements or other legal provisions or legal requirements;
(j) not to provide a gratuitous payment or benefit to any director, officer or employee of a Nordic Company other than in accordance with past practice;
(k) not to enter into any agreement or materially modify any subsisting agreement that relates to any works council or other information or consultation forum or is with a trade union or similar body resulting, in each case, in a material financial impact for the relevant Nordic Company;
(l) not to establish, participate in or contribute to any pension or employee benefit scheme which is not in existence as of the Signing Date or materially amend or discontinue any such schemes;
(m) not to materially modify the terms on which it owns, holds or is entitled to use any of the Properties;
(n) not to make any loans (excluding any advances and/or extensions regarding trade payables) to, any entity or person other than the Target Companies exceeding EUR 500,000.00 (in words: five hundred thousand euros) in the individual case or EUR 2,000,000.00 (in words: two million euros) in aggregate;
(o) not to (i) incur any (x) further Indebtedness for borrowed money whether under new or existing facilities (including further bank fees, further charges and further prepayment penalties in each case in relation to such incurrence) or (y) finance lease and/or hire purchase agreements (other than in a manner, and materially to the same extent, consistent with past practice), in excess of EUR 500,000.00 (in words: five hundred thousand euros) in the individual case or EUR 2,000,000.00 (in words: two million euros) in aggregate, (ii) enter into hedging transactions other than in a manner consistent with past practice, and/or (iii) enter into factoring agreements and/or financial swap agreements;
(p) not to materially amend, vary, terminate or breach any existing financing agreements for borrowed money in excess of EUR 250,000.00 (in words: two hundred fifty thousand euros) in the individual case (excluding, for the avoidance of doubt, termination of the IC Loan Agreements and the Cash Pool Agreements or the draw-down of existing and/or additional loans or the repayment of loans permitted under Section 5 above) or repay any borrowed monies in advance of the due date for repayment thereof;
(q) not to provide any guarantees or indemnities in respect of obligations or liabilities of (i) the Sellers or any other company of the P7S1 Group or (ii) any other person other than the Target Companies;
(r) except where required by law, regulation or accounting principles as applicable from time to time, not to change the accounting reference date of any Nordic Company or accounting or tax policies adopted or applied by any Nordic Company;
(s) not to adopt any change in the articles of association or by-laws (or other organizational or constitutional documents) of any Nordic Company;
(t) not to declare, pay or make any dividend or other distribution (other than to another Nordic Company);
(u) not to create, allot, issue, sellacquire, pledgerepay, create an Encumbrance redeem, reduce or otherwise dispose of repurchase any share or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, loan capital (or grant any options, warrants option for or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether right of pre-emption in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller of the same) in any of the Target Companies other than (i) the issuance of shares in the course of a capital increase of a Target Company to the extent the shares are allotted/issued to a Target Company or Key Subsidiary(ii) the issuance of shares in connection with a merger or reorganization of companies within the Target Group;
(v) materially change not to enter into any of its financial accounting policies re-organization scheme or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Casessimilar arrangement with creditors;
(viw) adopt not to merge or consolidate with any amendments to its Organizational Documents other person or permit the adoption of undertake any amendment of the Organizational Documents of other re-organization, whether internal or with any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, person other than a Permitted Encumbrance, in each case, except in within the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled termsTarget Group;
(x) not to acquire (i) any asset or group of related assets pursuant to a single transaction or a series of related transactions for a total consideration exceeding EUR 500,000.00 (in words: five hundred thousand euros) in the individual case other than as is required by in the terms ordinary course of business or (ii) business from any person other than Nordic Companies for a Parent Employee Benefit Plan and Policy consideration exceeding EUR 500,000.00 (in effect words: five hundred thousand euros) in the individual case, except pursuant to:
a. contracts or commitments existing on the date hereof and set forth on Section 4.10 for the acquisition of the Sellers’ Disclosure Schedule), content rights; or
b. any Assumed Plan (in effect other Disclosed contracts or commitments existing on the date hereof; or
(y) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed not to by Sellers and Sponsor, (A) increase the compensation or benefits dispose of any Employee assets or group of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary assets (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation inventories in the Ordinary Course ordinary course of Business or business) with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary book value exceeding EUR 500,000.00 (in words: five hundred thousand euros) in the Ordinary Course of Business, individual case to any person other than Employees who are current the Nordic Companies except pursuant to Disclosed contracts or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate commitments existing on the time of payment or vesting of any compensation or benefits under any Benefit Plandate hereof;
(xiz) modifynot to commit any of their assets exceeding a book value of EUR 500,000.00 (in words: five hundred thousand euros) in the individual case to be subjected to any Encumbrance of any kind, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts those arising by operation of law or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course ordinary course of Businessbusiness;
(xiiaa) enter into not to commence any Seller Material Contract other than as contemplated by Section 6.7dispute or litigation or arbitration proceedings or compromise, settle any action, dispute or litigation or arbitration proceedings with a claim value in excess of EUR 1,000,000.00 (in words: one million euros) in the individual case;
(xiiibb) acquire not to make any capital expenditure for fixed assets exceeding an amount of EUR 1,000,000.00 (including by merger, consolidation, combination or acquisition of Equity Interests or assetsin words: one million euros) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Businessindividual case or EUR 3,000,000.00 (in words: three million euros) in a transaction (aggregate or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000make any commitment thereto;
(xivcc) alter, whether through to maintain the insurance coverage for the Nordic Companies on a complete substantially similar basis as in existence on the Signing Date;
(dd) not to agree or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect commit to do any of the foregoing;
, except in each case, where such measures (xvi) enter into any Contract that limits or as set forth in lit. (f) and/or (x) above are taken in connection with the execution, amendment and/or renewal of content, programming and/or distribution agreements as set out in Annex 7.2-2, (ii) are otherwise restricts or that would reasonably be expected toDisclosed in Annex 7.2-3, after the Closing, restrict or limit in any material respect (Aiii) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, are specifically contemplated in the case budget of each the Target Companies attached hereto as Annex 7.2-4 (the “Target Budget”), (iv) are required by applicable law, regulation or a court ruling, (v) are taken or made between companies of clause the Target Group, (Avi) constitute Permitted Payments (viii) are specifically contemplated by and/or taken in accordance with this Agreement (including under Sections 5 or 8 hereof) or (B), from engaging or competing in any line of business or in any geographic area;
(xviviii) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, are approved in writing by the Purchaser (such approval shall not be unreasonably withheld or otherwise, delayed and shall be deemed to take any of be granted unless rejected by the foregoing actionsPurchaser in writing within 5 (five) Business Days following a written notice to the Purchaser).
Appears in 2 contracts
Samples: Sale & Purchase Agreement (Discovery Communications, Inc.), Sale & Purchase Agreement (Discovery Communications, Inc.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including During the DIP Facility; (ii) disclosed period commencing on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier ending as of the Closing Closing, the Corporation and the termination of this AgreementPartnership shall, Sellers shall and shall cause each Purchased Subsidiary their respective Subsidiaries to, subject to Section 6.01(a)(ii), use commercially reasonable efforts to (A) conduct their operations respective businesses in the Ordinary Course ordinary course of Business, business and (B) not take any action inconsistent with this Agreement or with preserve intact the consummation existence and business organization of the ClosingPartnership Entities, (C) use reasonable best efforts to preserve in the Ordinary Course of Business Governmental Licenses, and in present business relationships with all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers suppliers, licensors, distributors, and others having significant business dealings relationships with them, the Partnership Entities (D) not take any action to cause or any of Sellers’ representations them), to the extent such relationships are and warranties set forth in ARTICLE IV continue to be untrue beneficial to the Partnership Entities and their business.
(ii) During the period commencing on the date of this Agreement and ending as of the Closing, the Corporation and the Partnership shall not, and shall cause their respective Subsidiaries not to, modify, amend, or waive in any material respect manner any provision of the Partnership Agreement or any of the Charter Documents of their Subsidiaries in a way that is adverse to the Purchasers.
(iii) During the period commencing on the date of this Agreement and ending as of any such date when such representation or warranty is made or deemed to be made and (E) the Closing, the Partnership shall not take any action that would reasonably be expected require the prior consent or approval of the Series A Preferred Unitholders representing the Series A Required Voting Percentage (as such term is defined in the Partnership Agreement) after Closing pursuant to materially prevent or delay and in accordance with Section 6.01(e) of the ClosingPartnership Agreement.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after During the period commencing on the date of this Agreement and until the earlier ending as of the Closing Closing, subject to restrictions on the Partnership’s and its Subsidiaries’ ability to disclose such information as may be expressly set forth in the termination of this AgreementShin Oak Option Agreement or any confidentiality agreement relating thereto, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall notPartnership shall, and shall not permit any cause its Subsidiaries to, provide regular updates to the Purchasers regarding the status of the Key Subsidiaries transactions contemplated by the Shin Oak Option Agreement, including by (x) providing Purchasers with prompt notice of all material developments with respect thereto and in (y) to the case of clauses extent not duplicative with preceding clause (ix), (ix)providing true, (xiii) correct, and complete copies of any written notice given by or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including the Partnership under the UST Credit FacilitiesShin Oak Option Agreement promptly following their receipt or delivery, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;as applicable.
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting incomeNotwithstanding anything herein to the contrary, deductions or other material items for financial accounting purposesthe Partnership may, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result without the consent of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with Purchasers and without violating this Section 6.2);
(viii) 6.01, take all actions necessary to (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit exercise and close the Partnership’s right to acquire the Option Interests (including through as defined in the incurrence of Intercompany ObligationsPHP Option Agreement) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or PHP Option Agreement and (B) assume, guarantee, endorse or otherwise become liable or responsible exercise the Partnership’s right to acquire the Option Interests (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages defined in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (BGCX Option Agreement) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsGCX Option Agreement.
Appears in 2 contracts
Samples: Preferred Unit Purchase Agreement, Preferred Unit Purchase Agreement (Altus Midstream Co)
Conduct of Business. (aA) Except as (i) otherwise expressly contemplated by or permitted under this Agreementprovided for herein, including during the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement to the Closing, the Sellers and the Southern Entities shall, and the Parent shall cause the Sellers and Southern Entities to, conduct the Southern Business only in the ordinary course consistent with past practices for such business and to use commercially reasonable efforts to (i) preserve intact their current business organizations (ii) keep available the services of their current key officers and employees (provided that the Purchaser acknowledges that officers and employees of the Southern Business may voluntarily terminate their employment with such entities and the Parent or the Seller have no control over such voluntary terminations), (iii) preserve the goodwill of those engaged in material business relationships with the Southern Business, (iv) collect the receivables of the Southern Business and pay the payables of the Southern Business in the ordinary course of business consistent with past practices and in the same manner as previously collected or paid, (v) maintain their respective books and records in accordance with past practices, (vi) maintain in full force and effect until the earlier Closing substantially the same levels of coverage of insurance with respect to the assets, operations and activities of the Closing and Southern Business as are in effect as of the termination date of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (Avii) conduct their operations discharge liabilities of the Southern Business in the Ordinary Course ordinary course of Businessbusiness consistent with past practices. Without limiting the generality of the foregoing, (B) not take any action inconsistent with except as expressly provided for in this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties as set forth in ARTICLE IV to be untrue in any material respect as Section 4.01 of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to Disclosure Schedule, during the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, period from and after the date of this Agreement and until to the earlier of Closing, the Closing Sellers and the termination of this AgreementSouthern Entities shall not, and the Parent shall not permit the Sellers or the Southern Entities, without the prior written consent of Purchaser (which consent shall not be unreasonably withheldthe Purchaser, conditioned to take, or delayed)agree to or commit to take, such Seller shall not, and shall not permit any of the Key Subsidiaries (and in following actions with respect to the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) toSouthern Business:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiiia) acquire (including by merger, consolidation, combination consolidation or acquisition of Equity Interests stock or assetsassets or by any other manner) any asset, business or entity or stores from any Person or make capital expenditures (including for store remodelings, openings and relocations, store signage and information systems) in an aggregate amount in excess of $1,000,000 except (i) the acquisition of Inventory in the ordinary course consistent with past practices and consistent with seasonal levels, (ii) as set forth in Section 4.01(A)(a) of the Disclosure Schedule, (iii) expenditures deemed in good faith to be of an emergency nature to repair assets in an aggregate amount not in excess of $1,000,000 and accompanied or followed by a prompt notice to the Purchaser, (iv) expenditures for the acquisition of prescription files in an amount not exceeding $250,000 for any individual acquisition, (v) supplies purchased in the ordinary course of business, (vi) expenditures to repair assets in the ordinary course of business, (vii) expenditures for the acquisition of inventory in conjunction with the acquisition of prescription files in an amount not exceeding $200,000 for any individual acquisition or (viii) assets acquired pursuant to purchase orders issued prior to the date hereof in the ordinary course of business consistent with past practice;
(b) other than commitments disclosed in writing prior to the date hereof to Purchaser’s counsel (and denoted in such disclosure as signed), enter into any real estate lease or division lease commitment (or change the status of any commitment (including items denoted as signed) from the status thereof disclosed to Purchaser’s counsel) or modify, renew, extend or terminate any existing real estate lease or purchase or acquire or enter into any agreement to purchase or acquire any real estate in any Southern State;
(c) acquire, make any investment in, or make any loan, advance or capital contributions (including any “keep well” or other contract to maintain any financial statement condition of another Person) to, any Person, in an aggregate amount in excess of $250,000, other than routine advances to employees in the ordinary course of business consistent with past practices;
(d) sell, assign, lease, license, transfer, close, shut down or otherwise dispose (in whole or in part) of any material Purchased Assets or material assets of any Southern Entity except (i) Inventory in the ordinary course of business consistent with past practices or (ii) pursuant to existing contracts and commitments as set forth in Section 4.01(A)(d) of the Disclosure Schedule;
(e) permit Inventory purchases or commitments to materially exceed or be below historical seasonal levels;
(f) transfer management level employees or pharmacists of the Southern Sites to stores or regions outside the Southern States, except in the ordinary course of business consistent with past practices;
(g) enter into, modify, extend or cancel any third-party payor contracts (which contracts are for amounts in excess of $250,000 per annum), except in the ordinary course of business consistent with past practices;
(h) mortgage or pledge any Purchased Assets or assets of the Southern Entities or create or suffer to exist any Lien or Encumbrance other than Permitted Liens on any Purchased Assets or assets of the Southern Entities;
(i) allow the board of directors of any Seller or any of the Southern Entities to declare or deem that a “change of control”, as defined in any Benefit Plan, has occurred with respect to any benefit plan;
(j) grant or agree to grant to any Southern Business Employee who is an officer of a Seller or of any of the Southern Entities or a key employee of a Seller or of any of the Southern Entities any material increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits, or establish any new compensation or benefit plans or arrangements, or amend or agree to amend any existing Benefit Plans with respect to any Southern Business Employees, except (i) as set forth in Section 4.01(A)(j) of the Disclosure Schedule, (ii) as may be required under existing agreements, Benefit Plans or by applicable Law, (iii) pursuant to the normal severance policies of the applicable Seller as in effect on the date of this Agreement (and disclosed to the Purchaser in writing prior to the date hereof) consistent with past practices or (iv) increases in annual rates of base salary or wages payable or to become payable as a result of normal performance reviews performed in the ordinary course of business consistent with past practices;
(k) enter into or amend any employment, consulting, severance or similar agreement with any Southern Business Employee or adopt or enter into any collective bargaining agreement, except (i) as set forth in Section 4.01(A)(k) of the Disclosure Schedule or (ii) with respect to new hires of non-officer employees in the ordinary course of business;
(l) materially change workforce levels from those in effect as of the Balance Sheet Date (other than acquisitions with the prior written consent of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000Purchaser, which shall not be unreasonably withheld);
(xivm) altermake any material change in any method of accounting or accounting practice or policy, whether through except as required by any concurrent changes in GAAP or applicable Law;
(n) enter into any waiver, release, assignment, compromise or settlement of, or take any material action with respect to, any pending or threatened action or Legal Proceeding which is material or which relates to the transactions contemplated hereby, other than the prosecution, defense or settlement (for monetary damages only) of actions or Legal Proceedings not material to the Southern Business in the ordinary course of business consistent with past practices or actions to be taken by Parent or Sellers in accordance with Section 4.05;
(o) (i) enter into any material Assigned Contract or material Split Contract; (ii) amend, waive, modify, supplement, extend, terminate, allow to lapse, assign, encumber or otherwise transfer, in whole or in part, its rights and interests in or under any material Assigned Contracts or material Split Contracts; or (iii) enter into any Assigned Contracts or Split Contracts that are not at arms length;
(p) enter into any Contract (that would bind the Purchaser, any Southern Entity or the Southern Business after the date of Closing, including, without limitation, those that would be Assigned Contracts or Split Contracts) containing covenants of any of the Sellers or Southern Entities not to, or otherwise restraining, limiting or impeding any of the Sellers’ or Southern Entities’ ability to, compete with or conduct any business or line of business with respect to the Southern States or to hire any individual or group of individuals with respect to the Southern Business;
(q) change, or agree to change, any business policies which relate to sales, returns or product acquisitions, in each case in any material respect;
(r) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization recapitalization or other material reorganization;
(s) make, change or rescind any Tax election, change any annual Tax accounting period, change any method of Tax accounting or file for any change in accounting method, settle any Tax claim or assessment or surrender any right to claim for a Tax refund, in each case solely if such action may have a materially adverse effect on the Southern Business in a tax period that ends after the Closing Date, provided that in the case of this Section 4.01(A)(s), Purchaser’s consent shall not be unreasonably withheld or delayed;
(i) fail to file any material Tax Return which includes or relates to the Southern Business, Purchased Assets or the Southern Entities for any Pre-Closing Tax period on the due date therefor, including extensions, (ii) file a Tax Return which includes or relates to the Southern Business, Purchased Assets or the Southern Entities that is not true and complete in all material respects or (iii) fail to pay any Taxes which includes or relates to the Southern Business, Purchased Assets or the Southern Entities that are shown to be due and payable on any Tax Return;
(B) During the period from the date of this Agreement to the Closing, except as disclosed on Section 4.01(B) of the Disclosure Schedule, the Parent and the Stock Sellers shall not permit any of the Southern Entities, without the prior written consent of the Purchaser, to take, or agree to or commit to take, any of the following actions:
(a) (i) declare, set aside, make or pay any dividends or distributions on, or make any other distributions (whether in cash, securities or other property) in respect of, any Southern Entity Shares, (ii) split, combine or reclassify any of the outstanding Southern Entity Shares or issue or authorize the issuance of any Southern Entity Shares, or (iii) purchase, redeem or otherwise acquire any securities of any of the Southern Entities, including the Southern Entity Shares;
(b) issue, sell, transfer, grant or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) pledge, dispose of or otherwise encumber any securities of any Southern Entity, including the Southern Entity Shares, or any securities convertible into, or exchangeable for, any such shares or amend the terms of any such securities outstanding on the date hereof;
(c) amend the certificate of incorporation or bylaws (or other similar organizational documents) or alter through merger, liquidation, reorganization, restructuring or in any other mannerfashion, the legal corporate structure or ownership of any Key SubsidiarySouthern Entity or amend the terms of the Southern Entity Shares;
(d) except as required by existing commitments disclosed on Section 4.01(B)(d) of the Disclosure Schedule, repurchase, repay, incur, assume, endorse, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any indebtedness for borrowed money;
(e) issue or sell any debt securities or rights to acquire any debt securities;
(f) pay, discharge, cancel or satisfy any material claims, liabilities or obligations (accrued, asserted, unasserted, absolute, contingent or otherwise, known or unknown, matured or unmatured) other than intercompany obligations or the payment, discharge or satisfaction when due or otherwise in the ordinary course of business consistent with past practices of liabilities reflected or reserved against in the Balance Sheet or incurred in the ordinary course of business after the Balance Sheet Date consistent with past practices;
(g) cancel any material debts or waive any claims or rights of substantial value (including the cancellation or waiver of any indebtedness owed by, or adopt claims against, any of the Sellers or approve a plan their Subsidiaries), except for cancellations made or waivers granted in the ordinary course of business consistent with past practices which, in the aggregate, are not material;
(1) amend, assign or terminate any PBM Contract; or (2) enter into, amend, assign or terminate any Contract covering more than 35,000 lives; or
(i) amend, assign or terminate any PBM Network Arrangement or change the coverage of, or reimbursement rates under, any PBM Network Arrangement;
(j) materially change any Southern Entity’s practices with respect to any the timing of the foregoing;payments or collections.
(xvC) enter into Notwithstanding anything to the contrary contained in Section 4.01(A), the Parent, the Sellers or any Contract that limits or otherwise restricts or that would reasonably be expected toSouthern Entity may, after without the Purchaser’s written consent, prior to Closing, restrict take any action or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, commit to take any action specified in Section 4.01(A)(a), (b) and (h) in the ordinary course consistent with past practices provided that the Parent shall retain all assets so acquired pursuant to, and be responsible for all liabilities and obligations for or arising from, such actions or commitments taken, made or entered into without the Purchaser’s written consent and for which Purchaser’s consent would have been required under Section 4.01(A) but for this Section 4.01(C) (and which assets and liabilities shall be Excluded Assets and Excluded Liabilities under this Agreement).
(D) Notice to Purchaser of the foregoing actionsa request for consent required by this Section 4.01 shall be given to Purchaser through its legal counsel.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (J C Penney Co Inc)
Conduct of Business. (a) Except During the period from the date hereof to the Closing, except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement or as Buyer otherwise agrees in writing in advance, Seller shall conduct, and until the earlier of the Closing and the termination of this Agreement, Sellers shall and ROI shall cause each Purchased Subsidiary Seller to (A) conduct their operations conduct, the Business in the Ordinary Course of Businessand use its commercially reasonable efforts to preserve intact the Business and its relationship with its customers, (Bsuppliers, creditors and employees in accordance with past practices. During the period from the date hereof to the Closing, except as set forth on Schedule 5.2(n) not take any action inconsistent with or as otherwise contemplated by this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written Buyer shall otherwise consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and ROI shall cause Seller not permit any of to, with respect to the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) toBusiness:
(ia) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledgeincur, create an or assume any Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change on any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, assets other than a Permitted Encumbrance;
(b) sell, lease, license, transfer or dispose of any assets other than in each casethe Ordinary Course of Business;
(c) terminate or extend or modify any Material Contract;
(d) enter into any contract, arrangement or commitment other than in the Ordinary Course of Business;
(e) dispose of or permit to lapse any rights in, to or for the use of any Intellectual Property Related to the Business or the subject of any Seller Licensed Intellectual Property, or disclose to any Person not an Employee any Intellectual Property Related to the Business or the subject of any Seller Licensed Intellectual Property not heretofore a matter of public knowledge, except pursuant to judicial or administrative process;
(i) increase the compensation of any of the directors, officers, Employees or independent contractors of the Business, except in the Ordinary Course of Business or pursuant to a Contract the terms of agreements or plans currently in existence effect and listed on Schedule 3.9(a), (ii) pay or agree to pay or increase or agree to increase any pension, retirement allowance, severance or other employee benefit not already required or provided for under any existing plan, agreement or arrangement to any director, officer, employee or independent contractor, (iii) except as required by applicable Law, amend in any respect any such plan, agreement or arrangement, other than amendments that result in de minimis additional expense or (iv) hire any employee or individual independent contractor with annual compensation in excess of $20,000, other than to fill vacancies arising in the Ordinary Course of Business at compensation levels not in excess of those prevailing in the market, or enter into any new employment or severance agreements that would result in post-termination payments that in the aggregate would exceed $5,000 becoming due or payable upon termination of employment or of the date hereof (or entered into in compliance with this Section 6.2)individual independent contractor;
(viiig) assume or enter into any labor or collective bargaining agreement relating to the Business;
(Ai) incur or assume any additional Indebtedness, except under the current terms of any Contracts for Indebtedness for borrowed money disclosed on Schedule 3.14(a), or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility securities or (B) assume, guarantee, guarantee or endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the any material obligations of any other Person, except for Indebtedness for borrowed money among or (ii) make any Seller and Subsidiary material loans, advances or among capital contributions to, or investments in, any other Person (other than customary loans or advances to employees in amounts not material to the Subsidiariesmaker of such loan or advance);
(ixi) discharge settle any material claims, actions, arbitrations, disputes or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled termsproceedings;
(xj) other than as is required by accelerate the terms delivery or sale of a Parent Employee Benefit Plan and Policy (in effect on products or the date hereof and set forth on Section 4.10 incurrence of the Sellers’ Disclosure Schedule)capital expenditures, any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course Course) offer discounts on sale of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Planproducts;
(xik) modifyacquire (by merger, amendconsolidation or acquisition of stock or assets) any corporation, terminate partnership or other business organization or division thereof or any equity interest therein;
(l) cancel or compromise any material debt or claim or waive any rights under of material value to the Business without the Business receiving a realizable benefit of similar or greater value, or voluntarily suffer any Affiliate Contract extraordinary loss;
(m) do any other act which would reasonably be expected to cause any representation or warranty of either Seller Material Contract (except for any dealer sales and service Contracts in this Agreement to be or as contemplated by Section 6.7) 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 a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;material respect at such time; or
(xiin) authorize or enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination agreement or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan commitment with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Return on Investment Corp), Asset Purchase Agreement (Return on Investment Corp)
Conduct of Business. Without the prior written consent of the applicable counterparty to this Agreement (it being understood that with respect to Buyer’s applicable actions, only the consent of Seller (and no Stockholder) shall be required), not to be unreasonably withheld, conditioned, or delayed:
(a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including Seller shall not conduct the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any Business other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations than in the Ordinary Course of Business, (B) not take any action inconsistent in accordance with this Agreement or Applicable Requirements and in accordance with the consummation terms and conditions of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.Assumed Contracts;
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or Except as may be required by applicable Law or TARP or under any enhanced restrictions contractual commitments in existence on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits date of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party theretothis Agreement, other than in the Ordinary Course of Business, Seller shall not increase the compensation or benefits payable or to become payable to Business Employees;
(xiic) Neither Seller nor Buyer shall take, or cause to be taken, any action that would interfere with the consummation of the Transactions or delay the consummation of the Transactions;
(d) Neither Seller nor Buyer shall take any action that is intended or is reasonably likely to result in (i) any of its representations and warranties set forth in this Agreement being untrue at any time at or prior to the Closing or (ii) any of the Closing conditions set forth herein not being satisfied;
(i) Seller shall not take, or cause to be taken, any action described in Section 6.6; provided, that (A) Pre-Closing Assumed Contracts (other than Contracts relating to capital expenditures in excess of $500,000 in the aggregate) that are the same as or substantially similar in all material respects to the Assumed Contracts shall not be deemed to be outside the Ordinary Course of Business, and (B) Seller shall not enter into any Contract for capital expenditures at the Scottsdale Office in excess of $500,000, and Seller Material shall not enter into any Contract for capital expenditures at any location other than as contemplated by the Scottsdale Office, and (ii) Buyer shall not take, or cause to be taken, any action described in Section 6.7;5.6; or
(xiiif) acquire Neither Seller nor Buyer, as applicable, shall authorize or enter into any agreement or otherwise make any commitment to do any of the foregoing. Until the Closing, Buyer and Seller shall (including by mergeri) preserve its business organization, consolidation(ii) maintain its Licenses related to its business, combination or acquisition and (iii) take Reasonable Efforts to preserve its current relationships with business partners and other Persons with which it has business relations related to its business; and Seller shall (A) keep available the present services of Equity Interests or assetsits Business Employees, and (B) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions lock rates on Seller Pipeline Loans in the Ordinary Course of Business at profit margins consistent with the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (loanDepot, Inc.)
Conduct of Business. Prior to the Effective Time, except as set forth in the Universal Disclosure Letter or the Hanover Disclosure Letter or as any other provision of this Agreement expressly permits or provides or (provided that the party proposing to take such action has provided the other party with advance notice of the proposed action to the extent practicable) as required by Applicable Laws, unless the other party has consented in writing thereto, such consent not to be unreasonably withheld, delayed or conditioned, each of Universal and Hanover:
(a) Except as (i) otherwise expressly contemplated by or permitted under this Agreementshall, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary of its Subsidiaries to, conduct its operations according to (A) conduct their operations usual, regular and ordinary course in substantially the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect same manner as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.heretofore conducted;
(b) Subject shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, to preserve intact their business organizations and goodwill (except that any of its Subsidiaries may be merged with or into, or be consolidated with, any of its Subsidiaries or may be liquidated into it or any of its Subsidiaries), keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(c) shall not amend or propose to amend its certificate of incorporation or bylaws, other than bylaw amendments that are not detrimental to the exceptions contained interests of stockholders;
(d) shall not permit or allow Hanover Merger Sub or Universal Merger Sub to amend their respective certificates of incorporation or bylaws;
(e) shall promptly notify the other of any material change in clauses its or any of its material Subsidiaries’ condition (ifinancial or otherwise) through or business or any termination, cancellation, repudiation or material breach of any Universal Material Contract or Hanover Material Contract, respectively (iv) of Section 6.2(aor communications indicating that the same may be contemplated), each Seller agrees thator any material litigation or proceedings (including arbitration and other dispute resolution proceedings) or material governmental complaints, from and after investigations, inquiries or hearings (or communications indicating that the date of this Agreement and until the earlier of the Closing and the termination of this Agreementsame may be contemplated) or any material developments in any such litigation, without the prior written consent of Purchaser proceedings, complaints, investigations, inquiries or hearings;
(which consent shall not be unreasonably withheld, conditioned or delayed), such Seller f) shall not, and shall not permit any of the Key its Subsidiaries (and in the case of clauses (i)to, (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take except pursuant to the exercise of options or upon the settlement of restricted stock units in each case existing on the date of this Agreement and disclosed in this Agreement or the Universal Disclosure Letter or the Hanover Disclosure Letter, pursuant to the conversion of any action Convertible Notes in accordance with the terms thereof or pursuant to the grant or exercise of awards granted after the date of this Agreement and expressly permitted under this Agreement, issue any shares of its capital stock or other equity securities, effect any stock split or otherwise change its capitalization as it existed on the date of this Agreement, (ii) grant, confer or award any option, warrant, conversion right or other right not existing on the date of this Agreement to acquire or otherwise with respect to which any Seller has granted approval rights to Sponsor under shares of its capital stock or other equity securities, or grant or issue any Contractrestricted stock or securities, including except in each case for awards under the UST Credit FacilitiesHanover Benefit Plans or the Universal Benefit Plans in existence as of the date hereof to any newly hired employees or to existing officers, without obtaining directors or employees in the prior ordinary course of business consistent with past practices; provided, however, that the vesting or exercisability of any award made after the date of this Agreement as permitted by this clause (ii) shall not accelerate as a result of the pendency, approval or consummation of such action from Sponsorthe transactions contemplated by this Agreement, (iii) amend or otherwise modify any option, warrant, conversion right or other right to acquire any shares of its capital stock existing on the date of this Agreement, (iv) with respect to any of its former, present or future officers, directors or employees, increase any compensation or benefits, award or pay any bonuses, establish any bonus plan or arrangement or enter into, amend or extend (or permit the extension of) any employment or consulting agreement, except in each case in the ordinary course of business consistent with past practices or as required by law, (v) except as expressly permitted under this Agreement, adopt any new employee benefit plan or agreement (including any stock option, stock benefit or stock purchase plan) or amend (except as required by law) any existing employee benefit plan in any material respect, or (vi) permit any holder of an option or other award pertaining to shares of Universal Common Stock or Hanover Common Stock to have shares withheld upon exercise, vesting or payment for tax purposes, in excess of the number of shares needed to satisfy the minimum statutory withholding requirements for federal and state tax withholding;
(iig) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain shall not (including upon conversion, exchange or exercise) any such Equity Interests;
(iiii) declare, set aside or pay any dividend or make any other distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value payment with respect to any Equity Interest shares of Seller its capital stock or (ii) redeem, purchase or otherwise acquire any Key Subsidiary)shares of its capital stock or capital stock of any of its Subsidiaries, or make any commitment for any such action;
(h) shall not, and shall not permit any of its Subsidiaries to, sell, lease, license, encumber or otherwise dispose of, or enter into a contract to sell, lease, license, encumber or otherwise dispose of, any of its assets (including capital stock of Subsidiaries) which are, individually or in the aggregate, material to it and its Subsidiaries as a whole, except for dividends (i) sales of surplus or obsolete equipment, (ii) sales of other assets in the ordinary course of business or sales of assets pursuant to contractual rights existing as of the date of this Agreement that were entered into the ordinary course of business consistent with past practices, (iii) sales, leases or other transfers between such party and distributions among its wholly owned Subsidiaries or between those Subsidiaries, (iv) sales, dispositions or divestitures as may be required by or in conformance with Applicable Laws in order to permit or facilitate the Purchased Subsidiariesconsummation of the transactions contemplated by this Agreement in accordance with Section 7.5(c), or (v) arm’s-length sales or other transfers not described in clauses (i) through (iii) above for aggregate consideration not exceeding $25 million for each of Hanover and Universal;
(ivi) shall not, and shall not permit any of its Subsidiaries to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing an equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, except in each case for acquisitions and agreements that involve an aggregate consideration of less than (A) $150 million for all acquisitions of the equity interests in or a substantial portion of the assets of businesses or entities whose principal assets are compression and related equipment and (B) $50 million for all other acquisitions to which this paragraph relates, in each case for each of Hanover and Universal (excluding, with respect to this clause (i), acquisitions approved in writing by both parties and excluding acquisitions by the Universal Partnership), or (ii) acquire or agree to acquire, directly or indirectly, purchase, redeem any assets or otherwise acquire any Equity Interests securities that would require a filing or approval under the HSR Act or any rights to acquire any Equity Interests of any Seller or Key SubsidiaryNon-U.S. Antitrust Law;
(vj) materially shall not, and shall cause its Subsidiaries not to, change any of the material accounting principles or practices used by it except as may be required as a result of a change in generally accepted accounting principles;
(k) shall, and shall cause any of its financial accounting Subsidiaries to, use commercially reasonable efforts to maintain in full force without interruption its present insurance policies or procedures comparable insurance coverage;
(l) shall not, and shall not permit any of its Subsidiaries to, (i) make or rescind any material election relating to taxes, including elections for any and all joint ventures, partnerships, limited liability companies, working interests or other investments where it has the capacity to make such binding election, (ii) settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to taxes except to the extent of any reserve reflected on that party’s consolidated balance sheet as of September 30, 2006 as filed with the SEC in its Quarterly Report on Form 10-Q for the quarter then ended relating to such matter that was established in the ordinary course of business consistent with past practice, or (iii) change in any material respect any of its methods of reporting income, deductions or other material items any item for financial accounting purposestax purposes from those employed in the preparation of its tax returns for the most recent taxable year for which a return has been filed, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit PlanApplicable Law;
(xim) modifyshall not, amendand shall not permit any of its Subsidiaries to, terminate or waive (i) incur any rights under any Affiliate Contract or Seller Material Contract (except indebtedness for any dealer sales and service Contracts or as contemplated by Section 6.7) borrowed money in any material respect in a manner that is adverse to any Seller that is a party theretoexcess of $200 million, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiaryaggregate, or adopt guarantee any such indebtedness or approve a plan with respect issue or sell any debt securities or warrants or rights to acquire any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser its debt securities or any of its Subsidiaries or guarantee any successor thereto debt securities of others, other than (A) borrowings from that party’s or its Subsidiary’s revolving credit facility in the ordinary course of business, (B) any Affiliates borrowings the proceeds of Purchaser which are used to repay or any successor thereto, repurchase other indebtedness of that party or its Subsidiaries or (C) borrowings in respect of intercompany debt or (ii) except in the case of each of clause (A) or (B), from engaging or competing in any line ordinary course of business or in with or between its Subsidiaries, enter into any geographic areamaterial lease (whether such lease is an operating or capital lease) or create any material Liens on its property (other than Permitted Liens);
(xvin) enter into shall not, and shall cause its Subsidiaries not to, purchase or otherwise acquire any Contracts for shares of capital expendituresstock of Universal or Hanover, exceeding $100,000,000 in the aggregate other than shares purchased solely to satisfy withholding obligations in connection with any single project the vesting or group exercise (as applicable) of related projectsrestricted stock, stock options, stock appreciation rights, restricted stock units and similar awards by the grantees thereof;
(xviio) open shall not take any action that could reasonably be expected to delay materially or reopen adversely affect in a material respect the ability of any major production facilityof the parties hereto to obtain any consent, authorization, order or approval of any governmental commission, board or other regulatory body or the expiration of any applicable waiting period required to consummate the transactions contemplated by this Agreement;
(p) unless in the good faith opinion of its Board of Directors after consultation with its outside legal counsel the following would be inconsistent with its fiduciary duties, (i) shall not terminate, amend, modify or waive any provision of any agreement containing a standstill covenant to which it is a party; and (ii) shall enforce, to the fullest extent permitted under Applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court of the United States of America or any state having jurisdiction;
(q) shall not take any action that would reasonably be expected to result in any condition in Article 8 not being satisfied; and
(xviiir) agree, shall not (i) agree in writing or otherwise, otherwise to take any of the foregoing actionsprohibited actions described above or (ii) permit any of its Subsidiaries to agree in writing or otherwise to take any of the prohibited actions described above that refer to Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Hanover Compressor Co /), Merger Agreement (Exterran Holdings Inc.)
Conduct of Business. (a) Except as (i) Except (x) as otherwise expressly contemplated by or permitted under this Agreement, including as expressly permitted under the DIP Facility; Credit Agreement (ii) disclosed on Section 6.2 of without the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect obtaining of any Subsidiary of Parentconsent or waiver thereunder); , the Plan or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of BusinessTerm Sheet, (By) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser the Required Backstop Parties, or (which consent shall not be unreasonably withheld, conditioned or delayedz) as set forth on Schedule 5(l), from the date hereof until the Effective Date, the Company shall, and shall cause each if its Subsidiaries and Tiwest Pty Ltd, ACN 009 343 364, a Western Australia company (“Tiwest”) (to the extent permitted in the Tiwest Joint Venture Documents) to, use their reasonable best efforts to operate the Company’s, Tiwest’s and their respective Subsidiaries’ facilities and to conduct the business and the Tiwest Joint Venture in substantially the same manner as conducted by such Seller entities prior to the date hereof, including by using their reasonable best efforts to (A) meet all material Post-Petition obligations relating to the business as they become due and (B) preserve intact its present business organization, material permits, and its relationships with its key customers and suppliers.
(ii) Without limiting the generality of the foregoing, except (x) as otherwise expressly contemplated by this Agreement, as expressly permitted under the Credit Agreement (without the obtaining of any consent or waiver thereunder), the Plan or the Term Sheet, (y) with the prior written consent of the Required Backstop Parties, or (z) as set forth on Schedule 5(l), from the date hereof until the Effective Date, the Company shall not, and shall cause each of its Subsidiaries not permit to, do, and shall not approve or authorize Tiwest or the Tiwest Joint Venture to do, any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tofollowing:
(iA) take offer, issue, deliver, sell, pledge or otherwise encumber or subject to any action with respect lien (other than a Permitted Lien) the capital stock or other equity interests of the Company or any of its Subsidiaries, or Tiwest, or securities convertible into or exchangeable for, or any rights, warrants, options to which acquire, any Seller has granted approval rights to Sponsor under such shares of capital stock or other equity interest in any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorentity;
(iiB) issueacquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business of another person;
(C) sell, pledgeassign, create an Encumbrance license, transfer, convey, lease, encumber or subject to any lien (other than a Permitted Lien or any lien that will be released at or prior to the Effective Date) or otherwise dispose of any asset having a fair market value in excess of $100,000 individually or authorize $500,000 in the issuanceaggregate, sale, pledge, Encumbrance or disposition other than sales of any Equity Interests inventory in the ordinary course of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interestsbusiness;
(iiiD) (1) enter into, assume or reject or amend, restate, supplement, modify, waive or terminate any Material Contract, material permit or unexpired lease, (2) enter into any settlement of any demand, dispute, suit, cause of action, claim or proceeding relating to a Material Contract or (3) enter into any contract that would not be a Material Contract, that (a) is outside the ordinary course of business, (b) delays or is reasonably expected to delay the Effective Date, or (c) subjects the Company or any of its Subsidiaries, including the Tiwest Joint Venture Interests, to any material non-compete or other similar material restriction on the conduct of the business that would be binding following the Effective Date; provided, that any contracts entered into in the ordinary course of business in connection with the purchase or sale of raw materials, pigments, ore, chemicals or similar materials used in the operations of the Company or its Subsidiaries are excepted from this clause (D);
(E) with respect to employees of the Company or any of its Subsidiaries, except as may be required by applicable laws or any benefit plan of the Company or any of its Subsidiaries, (1) grant any increase or acceleration in compensation or benefits, except in the ordinary course of business; (2) grant any increase in severance or termination pay (including the acceleration in the exercisability of any options or in the vesting of shares of common stock (or other property)), except in the ordinary course of business; (3) enter into any employment, deferred compensation, severance or termination agreement with or for the benefit of any such employee who is a management-level employee or anyone who upon hire, would become any such employee; or (4) terminate the employment of any such employee except due to cause, death, disability or as otherwise determined in the reasonable discretion of the Debtors exercising their business judgment, as consistent with the ordinary course of business;
(F) (1) authorize or agree to any material changes in or to the current approved budget or business plan of the Tiwest Joint Venture, (2) encourage or recommend any material changes to the current approved budget or business plan of the Tiwest Joint Venture to the Tiwest Joint Venture Participants, and (3) act in any way other than in accordance, in all material respects, with the current approved budget or business plan of the Tiwest Joint Venture, in each case, as in effect from time to time;
(G) (1) adopt or change any method of accounting (except as required by changes in generally accepted accounting principles in the United States), or (2) make, change or revoke any tax election, change any annual tax accounting period, file any amended tax return, enter into any closing agreement, settle any tax claim or assessment, surrender any right to claim a tax refund, consent to the extension or waiver of the limitations period applicable to any tax claim or assessment, or take or omit to take any other action if such action or omission would have a material and adverse effect on either New Tronox, the Company or its Subsidiaries (including Tiwest) after the Effective Date;
(H) permit the Company or Tiwest or their respective Subsidiaries to commit to make any capital expenditures, which, in the aggregate, exceeds the capital expenditure restrictions set forth in Section 6.7(e) of the Credit Agreement;
(I) adopt or propose any amendments to any the Company’s or its Subsidiaries’ certificate of incorporation, bylaws or other organizational or governing document or adopt or propose any amendment or modification to or agree to any material amendment or modification to the Tiwest Joint Venture Documents; except, in each case, in furtherance of the Plan or the Restructuring (as defined in the term sheet), provided, however, that in no event shall such amendments or modifications, directly or indirectly, adversely affect the Backstop Parties;
(J) incur, create, assume, guarantee or otherwise become liable for any obligation for borrowed money, purchase money indebtedness or any obligation of any other person or entity, whether or not evidenced by a note, bond, debenture, guarantee, indemnity, letter of credit or similar instrument, except for trade payables incurred in the ordinary course of business;
(K) (1) declare, set aside or pay any dividend dividends on, or make any distribution other distributions in respect of, any of its capital stock (whether in cash, securities other than upstream dividends by a direct or other property indirect wholly-owned subsidiary of the Company to the Company or by allocation another Subsidiary of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiarythe Company), except (2) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for dividends and distributions among the Purchased Subsidiaries;
shares of its capital stock or (iv3) directly or indirectly, purchase, redeem or otherwise acquire acquire, except in connection with the Plan, any Equity Interests shares of capital stock of the Company or any rights other securities thereof or any rights, warrants or options to acquire any Equity Interests of any Seller such shares or Key Subsidiary;other securities; or
(vL) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, agree to take any of the foregoing actions.
Appears in 2 contracts
Samples: Equity Commitment Agreement, Equity Commitment Agreement (Tronox Inc)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by as set forth in this Agreement or permitted under this Agreementon Section 5.2 of the Shareholders’ Disclosure Schedule, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; as required by applicable Law, or (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser the Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller during the period commencing on the date hereof and ending at the earlier of the Closing Date and the termination of this Agreement in accordance with its terms, the Company shall, and shall cause its Subsidiaries to, carry on their business in the ordinary course in a manner consistent with past practice, to pay their debts and Taxes when due, not to shorten or lengthen the customary payment cycles for any of their payables of receivables and, to the extent consistent therewith, to use their commercially reasonable efforts to keep intact their businesses, keep available the services of their current employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and other Persons with which they have significant business relationships. The Company shall promptly forward to Buyer complete and accurate copies of all material notices received or sent by any Acquired Company under any material Contract.
(b) Without limiting the generality of Section 5.2(a), except (A) as set forth in this Agreement or on Section 5.2(b) of the Shareholders’ Disclosure Schedule, (B) as required by applicable Law, or (C) with the prior written consent of the Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), during the period commencing on the date hereof and ending at the earlier of the Closing Date and the termination of this Agreement in accordance with its terms, the Company will not, and shall will cause its Subsidiaries not permit to, take any action or enter into any transaction that would result in any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tofollowing:
(i) take any action with respect amendment to which or change in the Organization Documents of any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from SponsorAcquired Company;
(ii) issueother than pursuant to the exercise of Company Share Options outstanding as of the date hereof, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the any issuance, salesale or other disposition or repurchase, pledge, Encumbrance redemption or disposition other acquisition of any Equity Interests of the Transferred Entitiesshares of, or grant rights of any kind to acquire (including options) any shares of, warrants any capital stock or other rights to purchase or obtain (including upon conversion, exchange or exercise) equity interests of any such Equity InterestsAcquired Company;
(iii) declareany declaration, set setting aside or pay payment of any dividend or make any other distribution (whether in cash, securities stock or other property or by allocation of additional Indebtedness to any Seller property, or any Key Subsidiary without receipt of fair value combination thereof) with respect to any Equity Interest capital stock of Seller any Acquired Company (other than any direct or any Key Subsidiaryindirect wholly-owned Subsidiary of the Company), except for dividends and distributions among the Purchased Subsidiaries;
(iv) any reclassification, combination, splitting, subdivision or issuance of any other securities in respect of, in lieu of or in substitution for, directly or indirectly, purchase, redeem any of the capital stock or otherwise acquire other equity interests of any Equity Interests Acquired Company or any options or other rights to acquire any Equity Interests of any Seller or Key Subsidiarythe foregoing;
(v) materially any change any of in its financial accounting policies principles or procedures practices or any of its the methods of reporting income, deductions by which such principles or other material items practices are applied for financial accounting purposes, reporting purposes (except as permitted required by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases);
(vi) adopt any amendments (A) entry into or amendment or modification to its Organizational Documents an employment, consulting, severance, change in control or permit similar Contract, other than with respect to hiring and firing in the adoption ordinary course of business, (B) increase in the rate of compensation (including bonus opportunities) or benefits (including severance) of any amendment of the Organizational Documents employee, officer, director, consultant or independent contractor of any Key Subsidiary or effect a splitAcquired Company, combination or reclassification or other adjustment of Equity Interests than the bonus payments to the Eligible Employees as contemplated by Section 5.6(c), (C) grant of any Purchased Subsidiary severance or termination pay unless required by the express terms of any Benefit Plan, or (D) any action that would constitute a “mass lay-off,” a “mass termination,” or a recapitalization thereof“plant closing,” or which would otherwise trigger notice requirements under any applicable Law concerning reductions in force;
(viiA) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course ordinary course of Business business consistent with past practice, any cancellation, material modification, termination or pursuant grant of a material waiver or release of any Permit, Contract or other right or claim or give any consent or exercise any material right thereunder or (B) entry into any Contract which would be material to the Acquired Companies (taken as a Contract in existence as whole) or outside the ordinary course of the date hereof (or entered into in compliance with this Section 6.2)business;
(viii) (A) incur any acquisition, sale, transfer, conveyance, lease or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations other disposition of any businesses or any properties or assets of any Person that are material, individually or in the aggregate, that have a fair market value in excess of $100,000 by any Acquired Company (other Person, except for Indebtedness for borrowed money among any Seller than acquisitions of supplies and Subsidiary or among sales of Inventory in the Subsidiariesordinary course of business consistent with past practice);
(ix) discharge (A) any incurrence, guarantee, or satisfy assumption by any Indebtedness Acquired Company of any Indebtedness, or mortgage, pledge or grant of a Lien on any of their properties or assets in excess of $100,000,000 other than 100,000 in the discharge aggregate for the Acquired Companies (taken as a whole), (B) fail to pay any creditor any amount owed to such creditor when due, or satisfaction (C) except as specifically contemplated by this Agreement, any payment of any principal of or interest on any Indebtedness before the required date of such payment, cancellation of any Indebtedness when due in accordance or waiver of any claims or rights with its originally scheduled termsrespect to any Indebtedness;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or of any Acquired Company;
(xi) any change in any other mannermethod of accounting, the legal structure accounting principle or ownership accounting practice by any Acquired Company or any making of, or any change in, any Tax election, any change in any tax accounting method or any settlement of any Key Subsidiaryclaim for Taxes;
(xii) any action that materially violates any provision of this Agreement; or
(xiii) any authorization or entry into any Contract to do, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Share Purchase Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD), Share Purchase Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including With respect to the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after period between the date of this Agreement hereof and until the earlier to occur of the Closing and or the termination of this AgreementAgreement pursuant to Article IX, Sellers and except as otherwise permitted or required by the terms hereof, UPH shall and shall cause each Purchased Subsidiary to (A) conduct PPIC to, and the Platform Owners shall and shall cause the Platform Entities and their operations in the Ordinary Course of BusinessSubsidiaries to, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and operate their respective businesses in all material respects only in the present relationships ordinary course of Sellers business, and each UPH shall not and shall not permit PPIC to, and the Platform Owners shall not and shall not permit the Platform Entities or any of their Subsidiaries to, other than in the ordinary course of business and consistent with their respective customerspast practice, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in make any material respect as Tax election, change any material Tax accounting method, enter into any settlement or compromise of any such date when such representation material Tax Liability, file an amended Tax Return, enter into any closing agreement with respect to Taxes, or warranty is made consent to any extension or deemed waiver of any statute of limitations with respect to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the ClosingTaxes.
(b) Subject Except as consented to or approved by the exceptions contained other Party in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after writing or as permitted under the date of this Agreement and until the earlier of the Closing and the termination terms of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller UPH shall not, and shall not permit PPIC to, and the Platform Owners shall not, and shall not permit the Platform Entities or any of their Subsidiaries to, take or to agree (in writing or otherwise) to take any action which would (i) cause any of the Key Subsidiaries (representations or warranties of UPH and PPIC, on the one hand, or the Platform Owners or the Platform Entities and their Subsidiaries, on the other hand and as applicable, set forth in the case of clauses (i)this Agreement to be untrue in any material respect, (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issueprevent or materially impair the ability of UPH and PPIC, sellon the one hand, pledgeor the Platform Owners or the Platform Entities and their Subsidiaries, create an Encumbrance on the other hand and as applicable, to consummate the transactions contemplated by this Agreement, including, without limitation, actions that would be reasonably likely to prevent or otherwise dispose of or authorize materially impair the issuance, sale, pledge, Encumbrance or disposition receipt of any Equity Interests of the Transferred Entitiesconsent, registration, approval, permit or grant any optionsauthorization, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether that is necessary in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent connection with the expiration execution and delivery of a Collective Bargaining this Agreement, the Settlement Agreement, Related Agreements and the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers consummation of the transactions contemplated hereby and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;thereby.
(xic) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Nothing in this Section 6.7) 6.1 is intended to result in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser Party or any of its Subsidiaries or any successor thereto or (B) any Affiliates ceding control to the other Party of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line its basic ordinary course of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsand commercial decisions.
Appears in 2 contracts
Samples: Exchange Agreement, Exchange Agreement
Conduct of Business. (a) Except as From and after the date hereof and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 7.1 (the “Termination Date”), and except (i) as may be otherwise expressly contemplated required by or permitted under this Agreement, including the DIP Facilityapplicable Law; (ii) disclosed on Section 6.2 with the prior written consent of the Sellers’ Disclosure ScheduleParent; (iii) approved as expressly contemplated or permitted by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent)this Agreement; or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier as disclosed in Section 5.1 of the Closing and Company Disclosure Letter, the termination of this AgreementCompany shall, Sellers shall and shall cause each Purchased Subsidiary to of its Subsidiaries to: (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and its business in all material respects in the present ordinary course; (B) use commercially reasonable efforts to maintain and preserve intact its business organization and advantageous business relationships and to retain the services of Sellers its key officers and key employees, in each case, to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time; (C) comply in all material respects with applicable Laws and the requirements of their Subsidiaries with their respective customers, suppliers all Company Material Contracts; and others having significant business dealings with them, (D) not take any no action that is intended to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent adversely affect or materially delay the Closingability of any of the parties hereto from obtaining any necessary approvals of any regulatory agency or other Governmental Entity required for the transactions contemplated hereby, performing its covenants and agreements under this Agreement or consummating the transactions contemplated hereby or otherwise materially delay or prohibit consummation of the Merger or other transactions contemplated hereby; provided, however, that no action by the Company or its Subsidiaries with respect to matters specifically addressed in Section 5.1(b)of the Company Disclosure Letter shall be deemed a breach of this Section 5.1(a).
(b) Subject to The Company agrees with Parent that between the exceptions contained date hereof and the Effective Time, except as set forth in clauses (i) through (ivSection 5.1(b) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of Company Disclosure Letter or as otherwise contemplated or permitted by this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller Company shall not, and shall not permit any of its Subsidiaries to, without the Key Subsidiaries prior written consent (not to be unreasonably withheld or delayed) of Parent until the earlier of (x) the Termination Date and in (y) the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) toEffective Time:
(i) take adjust, split, combine or reclassify any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under capital stock or otherwise amend the UST Credit Facilities, without obtaining the prior approval terms of such action from Sponsorits capital stock;
(ii) issuemake, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend dividend, or make any other distribution (whether in cash, stock, equity securities or other property property) on, or by allocation directly or indirectly sell, grant, dispose of, pledge, redeem, purchase or otherwise acquire or encumber, any shares of additional Indebtedness to any Seller its capital stock or any Key Subsidiary without receipt securities or obligations convertible (whether currently convertible or convertible only after the passage of fair value with respect to time or the occurrence of certain events) into or exchangeable for any Equity Interest shares of Seller or any Key Subsidiary)its capital stock, except for in connection with cashless exercises or similar transactions pursuant to the exercise of stock options or other awards issued and outstanding as of the date hereof under the Company Stock Plans or permitted hereunder to be granted after the date hereof; provided that following the end of each fiscal quarter the Company may declare and pay a quarterly cash dividend equal to $0.09 per Share and that this Section 5.1(b)(ii) shall not apply to intercompany dividends and or distributions among the Purchased SubsidiariesCompany and its Subsidiaries in the ordinary course of business; provided, further, that in no event shall the Company declare a dividend respect to the fiscal quarter ended March 31, 2007 prior to May 1, 2007;
(iii) grant any person any right to acquire any shares of its capital stock;
(iv) directly issue or indirectly, purchase, redeem or otherwise acquire authorize the issuance of any Equity Interests additional shares of capital stock or any securities or rights convertible into shares of capital stock except pursuant to acquire any Equity Interests the exercise of any Seller stock options or Key Subsidiaryother awards issued under the Company Stock Plans or the Company Warrants, in each case issued and outstanding as of the date hereof and in accordance with the terms of such instruments;
(v) materially change purchase, sell, transfer, mortgage, encumber or otherwise dispose of or subject to any Lien (including pursuant to a sale-leaseback transaction or an asset securitization transaction) any properties or assets having a value in excess of its financial accounting policies $1 million in the aggregate (other than sales of inventory or procedures commodity purchase, sale or any hedging agreements, in each case in the ordinary course of its methods of reporting income, deductions or other material items for financial accounting purposesbusiness), except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result disclosed in Section 5.1(b)(v) of the filing of the Bankruptcy CasesCompany Disclosure Letter;
(vi) adopt make any amendments new capital expenditures not contemplated by the capital expenditure budget (a correct and complete copy of which has been made available to its Organizational Documents or permit the adoption Parent) having an aggregate value in excess of $1 million for any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereofconsecutive 12 month period;
(vii) issue, sell, pledgeincur, leaseassume, transferguarantee (including entering into a “keep well” or similar agreement), assign or dispose become obligated with respect to (A) any indebtedness for borrowed money or any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Company or any Purchased Asset or permit any Purchased Asset to become subject to any Encumbranceof its Subsidiaries, excluding intercompany debt among the Company and its Subsidiaries consistent with past practice, other than borrowings in the ordinary course of business in amounts not in excess of $34 million in the aggregate outstanding at any time pursuant to the Company’s existing credit facilities or under short-term debt or overdraft facilities, in each case as in effect as of the date hereof and disclosed in Section 3.21(a)(vi) of the Company Disclosure Letter or (B) any indebtedness for borrowed money or any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Company or any of its Subsidiaries that contain covenants that materially restrict the Merger or that are materially inconsistent with the Financing Commitments in effect as of the date hereof as previously disclosed to the Company;
(viii) directly or indirectly make any investment in or acquire another Person or business in excess of $1 million in the aggregate, whether by merger, consolidation, purchase of stock or securities, contributions to capital, property transfers or entering into binding agreements with respect to any such investment or acquisition;
(A) except in the ordinary course of business, enter into, renew, extend, materially amend or terminate any Company Material Contract or Contract which if entered into prior to the date hereof would be a Permitted EncumbranceCompany Material Contract, in each case, except in the Ordinary Course other than any Contract relating to indebtedness that would not be prohibited under clause (vii) of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.25.1(b);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or ; (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition extend the term or scope of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after purports to restrict the Closing, restrict or limit in any material respect (A) Purchaser Company or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area; (C) amend or modify the Engagement Letter; or (D) enter into any Contact that would be breached by, or require the consent of any third party in order to continue in full force following, the consummation of the Transactions;
(x) except to the extent required by Law (including Section 409A of the Code) or by Company Material Contracts, Company Benefit Plans or Company Foreign Plans each in existence as of the date hereof and disclosed in the appropriate Section of the Company Disclosure Schedule or as disclosed in Section 5.1(b)(x) of the Company Disclosure Letter, (A) amend or increase in any manner the compensation or benefits of any of its employees, directors, officers or consultants, except for non-material increases of compensation or benefits for employees (other than officers or directors) made in the ordinary course of business and in amounts and in a manner consistent with past practice; (B) pay any pension, severance or retirement benefits; or (C) enter into, establish, amend or terminate any employment, consulting, retention, change in control, collective bargaining, bonus or other incentive compensation, profit sharing, health or other welfare, stock option or other equity (or equity-based), pension, retirement, vacation, severance, deferred compensation or other compensation or benefit plan, policy, agreement, trust, fund or arrangement with, for or in respect of, any stockholder, director, officer, other employee, consultant or Affiliate;
(xi) waive, release, assign, settle or compromise any material claim, action or proceeding, other than in the ordinary course of business;
(xii) amend or waive any provision of its certificate of incorporation or its bylaws or other equivalent organizational documents;
(xiii) take any action that is intended or could reasonably be expected to result in any of the conditions to the Merger set forth in Article VI not being satisfied or materially delay such satisfaction;
(xiv) implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by GAAP, applicable Law or regulatory guidelines;
(xv) enter into any closing agreement with respect to material Taxes, settle or compromise any material liability for Taxes, make, revoke or change any material Tax election, agree to any adjustment of any material Tax attribute, file or surrender any claim for a material refund of Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of material Taxes, file any material amended Tax Return or obtain any material Tax ruling;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group a new line of related projectsbusiness;
(xvii) open adopt a plan or reopen any major production facility; andagreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or other reorganization (other than transactions exclusively between wholly owned Subsidiaries of the Company);
(xviii) agreeamend (including by reducing an exercise price or extending a term) or waive any of its rights under, in writing or accelerate the vesting under, any provision of the Company Stock Plans or any agreement evidencing any outstanding Company Stock Option, Company Warrant or other right to acquire Company capital stock or any similar or related contract;
(xix) (A) settle or compromise any legal proceeding material to the Company and its Subsidiaries taken as a whole or (B) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction in accordance with their terms of liabilities, claims or obligations reflected or reserved against in the most recent consolidated financial statements (or the notes thereto) of the Company included in the filed Company SEC Documents or incurred since the date of such financial statements in the ordinary course of business; or
(xx) agree to take take, make any commitment to take, or adopt any resolutions of its Board of Directors (A) in support of, any of the foregoing actionsactions prohibited by this Section 5.1(b) or (B) which would cause any of the representations or warranties of the Company set forth in this Agreement (1) that are qualified as to “materiality” or “Company Material Adverse Effect” to be untrue or (2) that are not so qualified to be untrue in any material respect.
(c) From and after the date hereof and prior to the Effective Time or the Termination Date, if any, and except (i) as may be otherwise required by applicable Law or (ii) as expressly contemplated or permitted by this Agreement, the Company and its Subsidiaries, Parent and Purchaser shall take no action that is intended to or that would reasonably be expected to materially adversely affect or materially delay the ability of any of the parties hereto from obtaining any necessary approvals of any regulatory agency or other Governmental Entity required for the transactions contemplated hereby, performing its covenants and agreements under this Agreement or consummating the transactions contemplated hereby or otherwise materially delay or prohibit consummation of the Merger or other transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Tb Woods Corp), Merger Agreement (Altra Holdings, Inc.)
Conduct of Business. (a) Except From the date hereof until the Closing Date, except as set forth on Schedule 7.02 hereto or as provided in Section 7.02(b) hereof, the Company shall conduct its business and shall cause its Subsidiaries to conduct their respective businesses in, and only in, the ordinary course and shall use, and shall cause its Subsidiaries to use, their best efforts to preserve intact their respective present business organizations, operations, goodwill and relationships with third parties (including, without limitation, clients and providers) and to keep available the services of the present directors, officers and key employees. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, without the prior written consent of the Investor (except as expressly permitted or required by this Agreement):
(i) otherwise expressly contemplated by or permitted under this Agreementthe Company shall not, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased of its Subsidiaries not to, sell any of the assets of the Company or its Subsidiaries (or the securities of entities holding the same) to any Person, other than the Company or a Wholly-Owned Subsidiary to of the Company, in one transaction or a series of related transactions, in which the fair value of the assets being sold, or the total consideration (A) conduct their operations in the Ordinary Course form of Businesscash or property and including any contingent consideration and any Indebtedness or other obligations assumed) to be received by the Company and its Subsidiaries, exceeds $2,000,000;
(ii) other than in the ordinary course of business consistent with past practice, the Company shall not, and shall cause each of its Subsidiaries not to, acquire any assets, in one transaction or series of related transactions, in which the total consideration (in the form of cash or property and including any contingent consideration and any Indebtedness or other obligations assumed) to be paid by the Company and its Subsidiaries exceeds $2,000,000;
(iii) the Company shall not, and shall cause each of its Subsidiaries or Significant Subsidiaries, as the case may be, not to take any of the actions or enter into any of the agreements, commitments or transactions described in clause (i), (Bii), (iii), (v), (vi), (ix), (x), (xi), (xii) or (xiii) of Section 3.09 hereof;
(iv) the Company shall not, and shall cause each of its Subsidiaries not to, take any action inconsistent with this Agreement that it knows or with the consummation has reason to believe would cause a representation or warranty of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties Company set forth in ARTICLE IV herein to be untrue in any material respect if made at such time, or a covenant of the Company set forth in Article VIII to fail to be satisfied as of the Closing Date; and
(v) the Company shall not, and shall cause each of its Subsidiaries not to, commit or agree to do any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay of the Closingforegoing.
(b) Subject Notwithstanding anything to the exceptions contained contrary in clauses (iSection 7.02(a) through (iv) of Section 6.2(a)hereof, each Seller agrees that, from the Company and after its Subsidiaries may sell the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and assets described in the case of clauses (i)Proposed Asset Sale Letter on terms not materially worse to the Company than those set forth in the Proposed Asset Sale Letter. Notwithstanding anything to the contrary in Section 7.02(a) hereof, (ix), (xiiinothing in Section 7.02(a) or (xvi), hereof shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under restrict the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures Company or any of its methods of reporting incomeSubsidiaries from paying dividends, deductions making distributions, paying Indebtedness owed to the Company or any other material items for financial accounting purposesSubsidiaries, except as permitted by GAAP, a SEC rule, regulation making loans or policy advances to the Company or applicable Lawany other Subsidiaries, or as modified by Parent as a result selling, leasing or transferring any properties or assets to the Company or any of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted EncumbranceSubsidiaries, in each case, except in case to the Ordinary Course of Business or pursuant to a Contract in existence as extent that any such restriction would be prohibited by Section 6.06(b) of the date hereof Credit Agreement (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any 4.05 of the foregoing;
Indenture (xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after as in effect on the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (Bdate hereof), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Investment Agreement (Magellan Health Services Inc), Investment Agreement (TPG Advisors Ii Inc)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after From the date of this Agreement and until through the earlier of the Closing and or the termination of this AgreementAgreement in accordance with Article IX, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in of the Ordinary Course of BusinessCompanies to, (B) not take any action inconsistent with except as contemplated by this Agreement or with the consummation of the Closing, (C) use reasonable best efforts as consented to preserve by Acquiror in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing (which consent shall not be unreasonably conditioned, withheld, conditioned delayed or delayeddenied), such Seller shall not(i) operate its business in the ordinary course (including by making capital expenditures substantially in accordance with and in amounts equal to the amounts set forth in Schedule 5.1(a) attached hereto), (ii) maintain its books, records, and shall not permit any accounts in accordance with past practice as used in the preparation of the Key Subsidiaries Interim Financial Statements and the Audited Financial Statements and (iii) use reasonable best efforts to maintain and preserve substantially intact its business organization and advantageous business relationships and the goodwill of its customers and suppliers and retain the services of its key officers and key employees. Without limiting the generality of the foregoing, except as set forth on Schedule 5.1 or as consented to by Acquiror in writing (which consent, in the case cases of clauses (a), (b), (d), (e), (f), (i), (ixk), (xiiil), (m), (n), (o), (q) or and (xvi)r) below, shall not permit be unreasonably conditioned, withheld, delayed or denied (it being understood that, without limiting other circumstances where conditioning, withholding or delaying any Purchased Subsidiary) such consent shall not be deemed unreasonable, any conditioning, any denial or withholding of consent with respect to the foregoing shall not be deemed unreasonable if the action for which consent is sought would require Acquiror and/or the Companies to pay, after the Closing, more than $250,000 in excess of the amounts that would be paid if the action for which the consent is sought was not otherwise taken or if the action would have similar adverse consequences to Acquiror)), Sellers shall cause the Companies not to, except as otherwise expressly contemplated by this Agreement:
(a) change or amend the certificate of incorporation, bylaws or other organizational documents of any Company, except as otherwise required by Law;
(b) except in the ordinary course of business, materially and adversely modify, cancel or terminate any Lease or any Contract of a type required to be listed on Schedule 3.12 (provided that the foregoing provisions of this clause (b) shall not prohibit allowing any such Contract to lapse at the end of the current term thereof);
(c) sell, assign, transfer, convey, lease, sublease, license, sublicense, pledge, encumber or subject to any other Lien, abandon, permit to lapse or otherwise dispose of any tangible or intangible assets (other than Contracts) or properties (other than the non-cash disposition of obsolete or worn-out tangible assets) for an amount in excess of $250,000 in the aggregate, except sales of inventory in the ordinary course of business;
(d) except as otherwise required by Law or existing Company Benefit Plan listed on Schedule 3.13(a) or other Contract, a copy of which has been provided to Acquiror, (i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition grant of any Equity Interests material severance or material termination pay (other than pursuant to policies or agreements of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (Companies in effect on the date hereof of this Agreement that are listed on Schedule 3.13(a) and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on provided to Acquiror prior to the date hereof); (ii) make any material change in the UAW Collective Bargaining Agreement key management structure of any Company, including the hiring of additional officers or consistent the termination of existing officers, other than in the ordinary course of business; or (iii) adopt, enter into or amend in any material respect any Company-Sponsored Benefit Plan or any Company Benefit Plan (other than amendments to or adoptions of new Company Benefit Plans that are made with respect to Seller’s employees as a whole);
(e) acquire by merger or consolidation with, or merge or consolidate with, or purchase all or substantially all of the expiration assets of, any corporation, partnership, association, joint venture or other business organization or division or business thereof;
(f) make any loans or advances to any Person, except for advances to employees or officers of a Collective Bargaining Agreementany Company for expenses incurred in the ordinary course of business;
(g) issue, sell or otherwise dispose of, or redeem, purchase or otherwise acquire, any shares of its capital stock or other equity interests or any securities or obligations convertible (whether currently convertible or convertible only after the Settlement Agreementpassage of time or the occurrence of certain events) into or exchangeable or exercisable for any shares of its capital stock or other equity interests;
(h) adjust, the UAW Retiree Settlement Agreement split, combine or reclassify any of its capital stock or other equity interests;
(i) implement or adopt any material change in its accounting methodologies, practices, estimation techniques, classifications, judgments, assumptions and principles, other than as may be required by applicable Law Law, GAAP or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Planregulatory guidelines;
(xij) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in adopt a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course plan of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolutiondissolution or recapitalization;
(k) make or change any material Tax election, mergerchange any annual accounting period, consolidationadopt or change any material method of accounting for Tax purposes, restructuringenter into any closing agreement, reorganization settle any claim or assessment for material Taxes, consent to any extension or waiver of the limitations period applicable to any claim or assessment for Taxes, or fail to pay any material Taxes as they become due and payable or, except in connection with a Surrender, file any material amended Tax Return or surrender any right to claim a refund of, offset to or other reduction in material Taxes, in each case, unless such action is required by applicable Law and disclosed in advance to Acquiror in writing;
(l) implement any employee layoffs that would implicate the WARN Act or any similar provision of foreign Law;
(m) cancel any debts or waive any claims or material rights under Material Contracts;
(n) incur, assume or guarantee the payment of any Indebtedness, except working capital borrowings, equipment financing, and purchase money obligations in the ordinary course of business or in an amount not greater than $250,000, and, in either case, which will be included in Closing Date Indebtedness or repaid or released in full at or prior to the Closing;
(o) declare, set aside, make or pay any other manner, the legal structure dividend or ownership of any Key Subsidiary, or adopt or approve a plan distribution with respect to any of its capital stock or other equity interests (other than any such dividend or distribution that will be paid or distributed in full prior to the foregoingAdjustment Calculation Time);
(xvp) enter into settle, release, waive or compromise any Contract that limits pending or otherwise restricts threatened Action which settlement, release, waiver or that compromise would reasonably be expected to(i) require payments by the Companies an aggregate amount in excess of $500,000, after (ii) entail the Closing, restrict or limit in incurrence of any material respect (A) Purchaser or any Liability of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor theretothe Companies, in the case aggregate, in excess of each of clause (A) such amount, or (B), from engaging iii) impose on any Company any injunctive or competing in any line of business or in any geographic areaother equitable relief;
(xviq) enter into agree to make any Contracts capital expenditures after the Closing Date, except for capital expenditures, individually or in the aggregate, not exceeding $100,000,000 in 250,000 and capital expenditures contemplated by the aggregate in connection with any single project or group of related projects;Companies’ 2012 financial budget and plan previously made available to Acquiror; or
(xviir) open authorize or reopen enter into any major production facility; and
(xviii) agreeagreement, in writing or otherwiseotherwise become obligated, to take do any of the foregoing actionsaction prohibited under this Section 5.1.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after From the date of this Agreement and until through the earlier Closing, each of the Closing and the termination of this AgreementIndustrea Parties shall, Sellers shall and shall cause each Purchased Subsidiary its Subsidiaries to, except as set forth on Schedule 7.7, as contemplated by this Agreement or as consented to by the Holder Representative in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use its commercially reasonable efforts to (Ai) conduct their operations operate its businesses in the Ordinary Course of Businessordinary course and substantially in accordance with past practice, (Bii) preserve and protect its business organization and employment relationships, (iii) maintain its assets, properties, books of account and records consistent with its past practice, (iv) maintain its books and records consistent with its past custom and practice and (v) to not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts fail to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially result in any of the conditions set forth in Article IX not being satisfied or that would otherwise be reasonably expected to prevent or delay the Closing.
(b) Subject to consummation of the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of transactions contemplated by this Agreement and until in any material respect. Without limiting the earlier generality of the Closing and foregoing, except as set forth on Schedule 7.7 or as consented to by the termination of this Agreement, without the prior written consent of Purchaser Company in writing (which consent shall not be unreasonably conditioned, withheld, conditioned delayed or delayeddenied), such Seller the Industrea Parties shall not, and shall cause their respective Subsidiaries not permit any of the Key Subsidiaries (and in the case of clauses (i)to, (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) toexcept as otherwise contemplated by this Agreement:
(i) take (A) change or amend its certificate of incorporation or bylaws or equivalent organizational documents, or (B) authorize for issuance, issue, grant, sell, redeem, deliver, dispose of, pledge or otherwise encumber any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorequity securities;
(ii) issue(A) split, sell, pledge, create an Encumbrance combine or otherwise dispose reclassify any of its capital stock or issue or authorize the issuance, sale, pledge, Encumbrance or disposition issuance of any Equity Interests other securities in respect of, in lieu of the Transferred Entitiesor in substitution for shares of its capital stock or any of its other securities or (B) make, set-aside, declare or grant pay any options, warrants dividend or other rights distribution (whether in securities or other property) to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interestsits stockholders;
(iii) declareexcept in the ordinary course of business, set aside materially adversely amend, modify or pay terminate (excluding any dividend or make expiration in accordance with its terms) any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased SubsidiariesIndustrea Material Contract;
(iv) directly or indirectly, purchase, redeem or otherwise acquire become legally committed to make any Equity Interests or any rights capital expenditures except pursuant to acquire any Equity Interests the terms of any Seller or Key Subsidiarythis Agreement;
(v) materially change sell, assign, transfer, convey, lease or otherwise dispose of any of its financial accounting policies material assets or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Casesproperties;
(vi) adopt make any amendments loans or advances of money to its Organizational Documents any Person (other than Industrea Parties and their Subsidiaries), except for advances to employees or permit the adoption of any amendment officers of the Organizational Documents Industrea Parties or their respective Subsidiaries for expenses incurred in the ordinary course of business consistent with past practice;
(i) (A) incur any Key material Taxes outside of the ordinary course of business, (B) enter into any agreement with any Governmental Authority (including a “closing agreement” under Code Section 7121) with respect to any material Tax or material Tax Returns of Industrea or any of its Subsidiaries, (C) surrender a right of Industrea or any Subsidiary of Industrea to a material Tax refund, (D) change an accounting period of Industrea or effect a splitany Subsidiary of Industrea with respect to any material Tax, combination (E) file an amended material Tax Return outside the ordinary course of business, or reclassification (F) make or other adjustment of Equity Interests of rescind any Purchased Subsidiary material Tax election or, except as required by GAAP, make any material change to any Tax accounting principles, methods or a recapitalization thereofpractices;
(vii) sell, pledge, lease, transfer, assign or dispose of settle any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);Action; or
(viii) (A) incur or assume enter into any Indebtedness for borrowed money or issue any debt securitiesagreement, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directlyobligated, contingently or otherwise) for the obligations of to do any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;action prohibited under this Section 7.7(a).
(ixb) discharge Nothing contained in this Agreement shall give the Company or satisfy the Holder Representative, directly or indirectly, any Indebtedness in excess right to control or direct the operations of $100,000,000 other than Industrea Parties and their Subsidiaries prior to the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by Closing. Prior to the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 Closing, each of the Sellers’ Disclosure Schedule)Industrea Parties shall exercise, any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration other terms and conditions of a Collective Bargaining this Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers complete control and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionssupervision over their respective businesses.
Appears in 2 contracts
Samples: Merger Agreement (Industrea Acquisition Corp.), Merger Agreement
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under as provided in this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; as required by applicable Law, (iii) approved by as provided in any Contract (to the Bankruptcy Court (or any other court or other Governmental Authority extent it would result in connection with any other bankruptcy, insolvency or similar proceeding filed by or a default thereunder) in respect effect as of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after as provided in the date of this Partnership Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser or (v) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned (it being understood that this parenthetical will have no effect on any rights that Parent or delayedits Affiliates have to consent to any of the actions in this Section 6.2 in any other Contract or agreement of the Partnership or its Affiliates)), such Seller during the period from the date of this Agreement until the Effective Time, each of the Partnership GP and the Partnership shall not, and shall cause each of their respective Affiliates not permit any of the Key Subsidiaries (to, and in the case of clauses (i), (ix), (xiii) or (xvi), Parent shall not permit any Purchased Subsidiary) cause Partnership or Partnership GP to:
(i) conduct its business and the business of its Subsidiaries other than in the Ordinary Course of Business, (ii) fail to use its reasonable best efforts to preserve intact its business organization, goodwill and assets and maintain its rights, franchises and existing relations with customers, suppliers, employees and business associates, or (iii) fail to use its reasonable best efforts to keep in full force and effect all material Permits and all material insurance policies maintained by the Partnership and its Affiliates;
(b) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorthat would have a Partnership Material Adverse Effect;
(c) other than annual compensatory equity awards granted to non-employee directors of the GP Board in the Ordinary Course of Business, or as expressly contemplated by this Agreement, (i) issue, sell or otherwise permit to become outstanding, or authorize the creation of, any additional equity securities (other than pursuant to the existing terms of Rights outstanding as of the date of this Agreement, if any) or any additional Rights, (ii) issue, sell, pledge, create an Encumbrance grant or otherwise dispose of or authorize amend any award under the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred EntitiesPartnership Incentive Compensation Plan, or grant (iii) enter into any options, warrants or other rights agreement with respect to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Intereststhe foregoing;
(iiii) declaresplit, set aside combine or pay reclassify any dividend of its equity interests or make authorize or propose the issuance of any distribution other securities in respect of, in lieu of or in substitution for its equity interests or (whether in cashii) repurchase, securities redeem or other property otherwise acquire, or by allocation permit any of additional Indebtedness its Subsidiaries to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire acquire, any Equity Interests partnership or any rights to acquire any Equity Interests other equity interests or Rights, except as required by the terms of any Seller its securities outstanding on the date hereof by the Partnership Incentive Compensation Plan or Key Subsidiaryas expressly contemplated by the terms of this Agreement;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(viii) sell, pledge, lease, transfer, assign lease or dispose of any Purchased Asset portion of its assets, business or permit any Purchased Asset to become subject to any Encumbrance, properties other than a Permitted Encumbrancein the Ordinary Course of Business (including distributions permitted under Section 6.2(f)), in each case(ii) acquire, except by merger or otherwise, or lease any assets or all or any portion of the business or property of any other entity other than in the Ordinary Course of Business or pursuant (iii) convert from a limited partnership or limited liability company, as the case may be, to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2)any other business entity;
(viiif) (A) incur make or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through declare distributions to the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations holders of any Common Units, the DERs or other Personequity interests in the Partnership, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 each case other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect pursuant to Employees who are not current or former directors or officers of Sellers or Seller Key PersonnelSection 3.1(h), Section 6.2(a) and Section 6.17;
(Bg) grant any severance amend the Partnership Agreement or termination pay to any Employee the Organizational Documents of Sellers the Partnership’s Affiliates (including by merger, consolidation, conversion or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnelotherwise), as in effect on the date of this Agreement;
(Ch) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or assign, or waive or assign any rights under under, any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party theretoContract, other than in the Ordinary Course of Business;
(xiii) enter into waive, release, assign, settle or compromise any Seller Material Contract Proceeding, including any state or federal regulatory Proceeding, seeking damages or an injunction or other equitable relief, that (i) is material to the Partnership and its Subsidiaries, taken as a whole, or (ii) is a claim, action or Proceeding relating to the transactions contemplated hereby;
(j) implement or adopt any material change in its accounting principles, practices or methods, other than as contemplated may be required by Section 6.7GAAP or other applicable regulatory authorities;
(xiiii) acquire change its fiscal year or any method of Tax accounting, (including by mergerii) make any material Tax election that is inconsistent with past practice or change or revoke any material Tax election, consolidation(iii) settle or compromise any material liability for Taxes, combination (iv) file any material amended Tax Return or acquisition (v) take any action or fail to take any action that would reasonably be expected to cause the Partnership or any of Equity Interests or assetsits Subsidiaries to be treated, for U.S. federal income Tax purposes, as a corporation;
(l) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business, (i) in a transaction incur, assume, guarantee or otherwise become liable for any indebtedness (directly, contingently or series otherwise), other than borrowings under existing revolving credit facilities or intercompany credit agreements or money pool arrangements, or (ii) create any Lien on its property or the property of related transactions) where the aggregate consideration paid its Subsidiaries to secure indebtedness or received (including non-cash equity consideration) exceeds $100,000,000any other obligation;
(xivm) alterauthorize, whether through recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization dissolution or in any other manner, the legal structure restructuring or ownership of any Key Subsidiary, or adopt or approve a plan with respect to or agreement of reorganization under any of the foregoingbankruptcy or similar Law;
(xvn) enter into knowingly take any Contract action that limits is intended or otherwise restricts is reasonably likely to result in (i) any of its representations and warranties set forth in this Agreement being or that would reasonably be expected to, after the Closing, restrict or limit becoming untrue in any material respect at the Closing Date, (Aii) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsconditions set forth in Article VII not being satisfied, (iii) any material delay or prevention of the consummation of the Merger or (iv) a material violation of any provision of this Agreement; or
(o) agree or commit to do anything prohibited by clauses (a) through (n) of this Section 6.2.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement
Conduct of Business. 5.1 Subject to Clause 5.2, during the period from the date of this Agreement to Completion, AWI shall comply (and shall procure that each Group Company complies) with the provisions of Schedule 4 (Conduct of Business prior to Completion).
5.2 Clause 5.1 does not apply in respect of and shall not operate so as to restrict or prevent:
(a) Except as any matter reasonably undertaken by any member of the Seller Group in an emergency or disaster situation with the intention of minimising any adverse effect thereof;
(b) any matter expressly permitted by, or necessary for performance of any provision of this Agreement or any of the other Transaction Documents or otherwise necessary for Completion;
(c) the completion or performance of any obligations undertaken pursuant to any contract or arrangement entered into by any member of the Seller Group prior to the date of this Agreement;
(d) subject to the requirements of Applicable Law, any matter undertaken by any member of the Seller Group at the request of the Purchaser or with the prior written consent of the Purchaser, such consent not to be unreasonably withheld, rendered subject to conditions or delayed more than seven (7) days from the date of receipt of the written request from AWI, and consent will be deemed to be given by the Purchaser where the Purchaser fails to respond to AWI’s written request (which request can be sent by email) within seven (7) days of the date of receipt of the written request from AWI;
(e) any matter to the extent required by (i) otherwise expressly contemplated by or permitted under this Agreementany Applicable Law, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect terms of any Subsidiary collective bargaining agreement that applies in relation to any Employee if in effect as of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject Disclosed to the exceptions contained in clauses (i) through (iv) of Section 6.2(a)Purchaser, each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit iii) any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from SponsorGovernmental Authority;
(iif) issue, sell, pledge, create an Encumbrance any matter necessary or otherwise dispose of or authorize reasonably considered by AWI to be appropriate for the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests implementation and/or completion of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain Pre-Completion Reorganisation; or
(including upon conversion, exchange or exerciseg) any such Equity Interests;
(iii) declaredistribution, set aside repayment, repatriation or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation payment of additional Indebtedness cash to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result member of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsGroup.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Armstrong World Industries Inc)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated approved by Parent in writing (such approval not to be unreasonably withheld, delayed or permitted under this Agreementconditioned), including the DIP Facility; (ii) disclosed on set forth in Section 6.2 5.1 of the Sellers’ Company Disclosure Schedule; Letter, (iii) approved required by the Bankruptcy Court (applicable Law or any other court or other a Governmental Authority in connection with any other bankruptcyEntity, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) as expressly contemplated or required by or resulting from any changes to applicable Lawsthis Agreement, from at all times during the period commencing with the execution and after the date delivery of this Agreement and continuing until the earlier to occur of the Closing and the termination of this AgreementAgreement pursuant to Article VII and the Effective Time, Sellers shall the Company shall, and shall cause each Purchased Subsidiary of its Subsidiaries to, carry on its business in the ordinary course consistent with past practice and use commercially reasonable efforts to (Aw) conduct their operations in the Ordinary Course of Businesspreserve intact its business organization, (Bx) not take any action inconsistent with this Agreement or with the consummation of the Closingpreserve its assets, rights and properties in good repair and condition, (Cy) use reasonable best efforts to keep available the services of its current officers (other than services of officers the service of whom terminates by operation of Law), employees and consultants and (z) preserve in the Ordinary Course of Business its goodwill and in all material respects the present its relationships of Sellers and each of their Subsidiaries with their respective customerssuppliers, suppliers licensors, licensees, distributors and others having significant business dealings with themit. In addition to and without limiting the generality of the foregoing, (D) not take any action to cause any of Sellers’ representations at all times during the period commencing with the execution and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date delivery of this Agreement and continuing until the earlier to occur of the Closing and the termination of this AgreementAgreement pursuant to Article VII and the Effective Time, without the prior written consent of Purchaser except as (A) approved by Parent in writing (which consent approval, solely in the case of clauses (e), (i), (j), (k), (l), (m), (n), (o), (p), (q) (r) and (s), shall not be unreasonably withheld, conditioned or delayed), such Seller (B) set forth in Section 5.1 of the Company Disclosure Letter, (C) expressly contemplated or required by this Agreement or (D) required by applicable Law or a Governmental Authority, the Company shall not, and shall not permit any of the Key its Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(a) (i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend dividends on, or make any distribution other distributions (whether in cash, securities shares or property) in respect of, any of its share capital or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary)equity interests, except for dividends and distributions among by a wholly owned Subsidiary of the Purchased Subsidiaries;
Company to its parent, (ivii) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests share capital or other equity interests of the Company or its Subsidiaries or any options, warrants or rights to acquire any Equity Interests share capital or other equity interests (other than the repurchase of Shares as allowed under any Company Plan) or (iii) split, combine, reclassify or otherwise amend the terms of any Seller of its share capital or Key Subsidiaryother equity interests, or any options, warrants or rights to acquire any share capital or other equity interests, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for share capital or other equity interests;
(vb) materially change issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any of its financial accounting policies share capital or procedures other equity interests or any of its methods of reporting incomesecurities convertible into, deductions exchangeable for or exercisable for any such shares or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Lawequity interests, or as modified by Parent as a result any rights, warrants or options to acquire, any share capital or other equity interests, or any share appreciation rights, “phantom” share rights, performance units, rights to receive share capital of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect Company on a split, combination or reclassification deferred basis or other adjustment rights linked to the value of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sellShares, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or including pursuant to a Contract in existence Contracts as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth (other than the issuance of Shares upon the exercise of Company Options or Company Warrants outstanding on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (Measurement Date in accordance with their terms as in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnelsuch date), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (UNITED THERAPEUTICS Corp), Merger Agreement (SteadyMed Ltd.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from From and after the date of this Agreement and hereof until the earlier of the Closing Date and the termination of this AgreementAgreement in accordance with the terms of Article X, Sellers shall except as (i) set forth on Schedule 6.1(a), (ii) as required by applicable Law, (iii) as expressly required or permitted by this Agreement or (iv) with the prior written consent of the Buyer, the Seller shall, and shall cause each Purchased Subsidiary its Subsidiaries to, use commercially reasonable efforts to:
(i) conduct their respective business (including with respect to (Athe Acquired Properties) in the ordinary course consistent with past practice and conduct their operations in compliance, in all material respects, with applicable Laws;
(ii) maintain and preserve the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation assets of the Closing, Seller and its Selling Subsidiaries in good repair and condition (Cnormal wear and tear excepted); and
(iii) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present goodwill and current relationships of Sellers the Seller and each of their its Subsidiaries with their respective customers, suppliers lessees and others having significant other persons with which the Seller or its Subsidiary has business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closingrelations.
(b) Subject to Without limiting the exceptions contained in clauses generality of the foregoing, from the date hereof through the Closing, except (i) through as set forth on Schedule 6.1(b), (ii) as required by applicable Law, (iii) as expressly required or permitted by this Agreement or (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without with the prior written consent of Purchaser (which consent shall not be unreasonably withheldthe Buyer, conditioned or delayed), such the Seller shall not, and shall not permit any of the Key cause its Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) toto not:
(i) take subject any action with respect of the Acquired Properties to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from SponsorLien other than Permitted Liens;
(ii) issueother than in the ordinary course of business or pursuant to the terms of a Material Contract in effect as of the date hereof and previously disclosed to the Buyer, sell, pledgeassign, create an Encumbrance license, transfer, convey, lease or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity InterestsAsset-Related Property;
(iii) declaresell, set aside lease, pledge, assign or pay otherwise transfer or otherwise dispose of any dividend of the Acquired Properties (other than the sale, assignment or make transfer of any distribution Asset-Related Properties pursuant to subclause (whether ii) above) other than pursuant to (a) the Purchase Options or (b) a Space Lease entered into in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value accordance with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased SubsidiariesSection 6.16;
(iv) directly enter into, amend, terminate or indirectlyrenew any Material Contract or Affiliate Contract (including all management agreements and space leases), purchase, redeem other than (A) any automatic terminations or otherwise acquire any Equity Interests or any rights renewals pursuant to acquire any Equity Interests the terms of any Material Contract, or (B) terminations of Existing Loans (including by prepayment thereof) in accordance with the terms of this Agreement; provided, however, that notwithstanding anything to the contrary in subclause (iii) above or this subclause (iv), the Seller and its Subsidiaries may (x) enter into, amend, terminate or Key Subsidiaryrenew any Space Lease pursuant to an Out for Signature Space Lease in the form and upon the same terms as provided to the Buyer and (y) enter into a new Space Lease that is not a Restricted Space Lease;
(v) materially change settle any Legal Proceeding involving any Acquired Properties in excess of its financial accounting policies $250,000 or procedures that involves admission of liability or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of restrictions on the filing of the Bankruptcy CasesAcquired Properties;
(vi) adopt except for restorations or alterations (A) required in the case of emergencies or material casualty or condemnation in accordance with Article XII of this Agreement or (B) pursuant to existing contracts or commitments previously disclosed to the Buyer and set forth on Schedule 6.1(b)(vi), make any amendments material alterations to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereofAcquired Properties;
(vii) sell, pledge, lease, transfer, assign accelerate the collection of accounts receivable or dispose defer the payment of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbranceaccounts payable except, in each case, except in the Ordinary Course ordinary course of Business business, or pursuant otherwise materially alter or amend practices with respect to a Contract in existence as the collection or payment of the date hereof amounts due to (or entered into in compliance with this Section 6.2otherwise collectable) or payable by the Seller or any of its Subsidiaries (whether under any Contract or otherwise);
(viii) (A) incur fail to use commercially reasonable efforts to maintain in effect all policies of insurance which are in effect as of the date hereof, or assume any Indebtedness for borrowed money or issue any debt securitiessimilar policies of insurance, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines with no less than the limits of credit (including through coverage now carried with respect to the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the SubsidiariesAcquired Properties;
(ix) discharge sell, exclusively license, transfer, assign, abandon or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction otherwise dispose of any Indebtedness when due in accordance with its originally scheduled termsCobalt Xxxx, Cobalt Domain Name or other Seller Intellectual Property;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement agree or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed commit to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to do any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Colony Financial, Inc.), Asset Purchase Agreement (Colony Financial, Inc.)
Conduct of Business. Except (i) as contemplated or permitted by this Agreement or the Seller Disclosure Schedule, (ii) as contemplated by any of the Ancillary Agreements, (iii) as may be necessary to carry out any of the transactions contemplated by this Agreement or the Ancillary Agreements, (iv) as may be necessary to facilitate compliance with any Legal Requirement or the requirements of any Specified Contract or (v) as approved by Purchaser, during the Pre-Closing Period:
(a) Except as Seller will (i) otherwise expressly contemplated by or permitted under this Agreementconduct its operations at the Boulder Facility in the ordinary course and consistent with its past practices, including to the DIP Facility; extent such operations relate to the Specified Assets, and (ii) disclosed on Section 6.2 use commercially reasonable efforts to maintain good relations with the Available Employees and the parties to the Specified Contracts; and
(b) Seller will not (i) license or dispose of any material Specified Assets, (ii) prematurely terminate or materially amend, grant a sublicense under or assign any of the Sellers’ Disclosure Schedule; Specified Contracts, (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect commit a material breach of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and Specified Contract entered into after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness material changes to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or provided by Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Available Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xiiv) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by mergeremployment, consolidation, combination bonus or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan severance agreement with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or Available Employees. If Seller requests Purchaser's approval of a proposed action that would reasonably be expected toresult in a breach by Seller of this Section 4.2, after the Closing, restrict or limit in any material respect (A) Purchaser or any of will respond promptly to Seller's request and will not unreasonably withhold its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any approval of the foregoing actionsproposed action. All references in this Section 4.2 to the "Available Employees" will be deemed to refer instead only to the "Specified Employees" at such time as the Specified Employees are identified by Purchaser pursuant to Section 5.5.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Gilead Sciences Inc), Asset Purchase Agreement (Osi Pharmaceuticals Inc)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including During the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and hereof until ------------------- the earlier of the Closing and Effective Time or the termination of this AgreementAgreement in accordance with its terms, Sellers shall Caldera will continue to conduct its business and shall cause each Purchased Subsidiary to (A) conduct their operations maintain its business relationships in the Ordinary Course of Businessordinary and usual course and consistent with past practice and, (B) not take any action inconsistent with this Agreement except as otherwise disclosed herein or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customersCaldera Disclosure Letter, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreementit will not, without the prior written consent of Purchaser (SCO, which consent shall not be unreasonably withheld, conditioned withheld or delayed), such Seller shall not, and shall not permit take any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tofollowing actions where it would cause a Material Adverse Effect on Caldera:
(ia) take borrow any action with respect money except for (A) amounts that are not in the aggregate material to which any Seller has granted approval rights the financial condition of Caldera and its subsidiaries, taken as a whole or (B) pursuant to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorexisting credit facilities;
(iib) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of cause any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset Caldera Assets to become subject to any Encumbrance, other than a except for Caldera Permitted Encumbrance, in each case, Encumbrances and except in the Ordinary Course of Business or pursuant to a Contract in existence for Caldera Encumbrances arising under credit facilities existing as of the date hereof hereof;
(c) dispose of any of Caldera Assets which are material to the Caldera Business;
(d) issue capital stock representing more than a 10% interest in the total outstanding securities of Caldera;
(e) merge, consolidate or entered into reorganize with, or acquire any entity, except for transactions in compliance with which the aggregate consideration is below $15 million;
(f) amend the Certificate of Incorporation or Bylaws of Caldera or any of its subsidiaries or as otherwise expressly contemplated by this Section 6.2Agreement);
(viiig) (A) incur agree to take, or assume permit any Indebtedness for borrowed money Caldera entity to take or issue agree to take, or enter into negotiations with respect to, any debt securitiesof the actions described in the preceding clauses in this Section 5.3(g). -------------- Notwithstanding the foregoing, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through nothing in this Section 5.3 shall ----------- restrict or limit the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations conduct of any other Personbusiness of Caldera or its direct or indirect subsidiaries or the use or disposition of the Caldera Assets, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on in this Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.5.3. -----------
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Tarantella Inc), Agreement and Plan of Reorganization (Tarantella Inc)
Conduct of Business. (a) Except (v) as (i) otherwise expressly contemplated by or permitted under provided in this Agreement, including (w) as set forth in the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Company Disclosure Schedule; , (iiix) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) as required by or resulting from applicable Law, (y) as provided in any changes to applicable Laws, from and after Company Material Contract in effect as of the date of this Agreement and until (including the earlier of the Closing and the termination of this Company Operating Agreement, Sellers shall and shall cause each Purchased Subsidiary ) or (z) pursuant to (A) conduct their operations a Parent Directive or as otherwise consented to in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing by Parent (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), such Seller during the period from the date of this Agreement until the earlier of the First Merger Effective Time and the termination of this Agreement pursuant to Article VIII, each of the Manager and the Company shall, and shall cause each of their respective Subsidiaries to, conduct its business (i) in the ordinary course of business consistent with past practice and (ii) in compliance with the EnLink Midstream Interim Period Restricted Actions.
(b) Except (v) as provided in this Agreement, (w) as set forth in the Company Disclosure Schedule, (x) as required by applicable Law, (y) as provided in any Company Material Contract in effect as of the date of this Agreement or (z) pursuant to a Parent Directive or as otherwise consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the earlier of the First Merger Effective Time and the termination of this Agreement pursuant to Article VIII, the Company shall not, and shall not permit any of the Key its Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect subject to which any Seller has granted approval rights to Sponsor under any ContractSection 6.13(a), including under the UST Credit Facilitiesdeclare, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declareauthorize, set aside or pay any dividend or make any distribution (whether payable in cash, securities stock or property in respect of any of the Company’s or the MLP’s capital stock, other than (A) the declaration and payment of regular quarterly distributions to holders of Common Units not in excess of $0.1325 per unit per quarter, (B) the declaration and payment of distributions in cash or in kind to the holders of the MLP Series B Preferred Units, in accordance with the MLP Partnership Agreement, and as approved by the board of directors of the MLP General Partner, in its capacity as the general partner of the MLP, and (C) any distributions paid by the Company or a Subsidiary of the Company to the Company or another Subsidiary of the Company in the ordinary course of business;
(ii) adopt a plan or agreement of complete or partial liquidation, dissolution or restructuring or a plan or agreement of reorganization under any bankruptcy or similar Law;
(iii) fail to maintain any material right-of-way and other material real property or by allocation other than in the ordinary course of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value business consistent with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiariespast practice;
(iv) directly split, combine, divide, subdivide, reverse split, reclassify, recapitalize or indirectly, purchase, redeem effect any other similar transaction with respect to the capital stock or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests other equity interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures the Company or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;Subsidiaries; or
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviiiv) agree, in writing or otherwise, to take any of the foregoing actions, or take any action or agree, in writing or otherwise, to take any action, including proposing or undertaking any merger, consolidation or acquisition, in each case, that would reasonably be expected to prohibit, prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Mergers or the other transactions contemplated by this Agreement.
(c) Except (w) as provided in this Agreement, (x) as set forth in the Parent Disclosure Schedule, (y) as required by applicable Law, or (z) as consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the First Merger Effective Time, Parent shall not, and shall not permit any of its Subsidiaries to:
(i) amend Parent’s or any of its Subsidiaries’ Organizational Documents (whether by merger, consolidation, conversion or otherwise) in any manner that would reasonably be expected to (A) prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Mergers or the other transactions contemplated by this Agreement, or (B) adversely affect (1) the value of the Merger Consideration to be obtained by the Company Unaffiliated Unitholders upon the consummation of the Merger or (2) terms of the Parent Common Stock in any material respect;
(ii) declare, authorize, set aside or pay any dividend or distribution payable in cash, stock or property in respect of any of Parent’s capital stock, other than regular quarterly cash dividends on the Parent Common Stock in the ordinary course of business consistent with past practice and other than dividends or distributions with a record date after the First Merger Effective Time; provided, however, that nothing contained herein shall prohibit Parent from increasing the quarterly cash dividend on Parent Common Stock;
(iii) split, combine, divide, subdivide, reverse split, reclassify, recapitalize or effect any other similar transaction with respect to any of Parent’s capital stock or other equity interests; provided, however, that nothing contained herein shall prohibit Parent from making repurchases of Parent Common Stock pursuant to Parent’s publicly disclosed share repurchase program;
(iv) solely with respect to Parent or any of its material Subsidiaries, adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization, or enter into a letter of intent or agreement in principle with respect thereto, other than consolidations, restructurings or reorganizations solely among Parent and its Subsidiaries or among Parent’s Subsidiaries;
(v) directly or indirectly purchase, acquire or otherwise become beneficial owner of (or direct the Company to repurchase, redeem or otherwise acquire) any additional Common Units; or
(vi) agree, in writing or otherwise, to take any of the foregoing actions, or take any action or agree, in writing or otherwise, to take any action, including proposing or undertaking any merger, consolidation or acquisition, in each case, that would reasonably be expected to prohibit, prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Mergers or the other transactions contemplated by this Agreement.
(d) Until the Effective Time or the earlier termination of this Agreement, unless otherwise approved by the Manager Board and the Manager Conflicts Committee, Parent shall not (i) amend, modify or revoke the Support Agreement, or (ii) directly or indirectly (A) other than to a ONEOK Entity (as defined in the Support Agreement) that agrees to be bound by the Support Agreement, sell, transfer, assign, tender in any tender or exchange offer, pledge, encumber, hypothecate or similarly dispose of (by merger, by distribution, by operation of Law or otherwise), either voluntarily or involuntarily, or enter into any Contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or other disposition of (by merger, by distribution, by operation of Law or otherwise), any Common Units owned by Parent as of the date hereof, (B) deposit any Common Units into a voting trust or enter into a voting agreement or arrangement or grant any proxy, consent or power of attorney with respect thereto that is inconsistent with this Section 6.2(d), or (C) agree (regardless of whether in writing or orally) to take any of the actions referred to in the foregoing clauses (A) or (B).
Appears in 2 contracts
Samples: Merger Agreement (Oneok Inc /New/), Merger Agreement (EnLink Midstream, LLC)
Conduct of Business. Except as contemplated by this Agreement or disclosed in the Disclosure Schedule, and except as may be necessary to carry out the transactions contemplated by this Agreement or any transaction contemplated by or relating to any of the contracts or other matters referred to in the Disclosure Schedule or unless required under the Bankruptcy Code or in accordance with other applicable law or any ruling or order of the Bankruptcy Court, Sellers shall ensure that, without Purchaser’s consent (which consent in the case of actions described in the following clauses (c) and (d) shall not be unreasonably withheld by Purchaser):
(a) Except as none of Sellers directly or indirectly sells or otherwise transfers, or offers, agrees or commits (iin writing or otherwise) to sell or otherwise expressly contemplated by transfer, any of the Purchased Assets other than in the ordinary course of business, except in accordance with the Procedures Order;
(b) none of Sellers permits, and none of Sellers offers, agrees or permitted under commits (in writing or otherwise) to permit, any of the Purchased Assets to become subject, directly or indirectly, to any Encumbrance, except for the Encumbrances existing on the date of this Agreement, including ;
(c) each Seller conducts its operations exclusively in the DIP Facility; (ii) disclosed on Section 6.2 ordinary course of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes business and substantially as such operations have been conducted prior to applicable Laws, from and after the date of this Agreement (including with regard to pricing), and until the earlier each Seller shall continue to prepare its financial statements in accordance with GAAP, consistently applied and with such exceptions as set forth on Schedule 5.11(a) of the Closing Disclosure Schedule, and not modify any policies or procedures or the termination application of any policies or procedures respecting reserves, write downs or write offs;
(d) none of Sellers commences any Proceeding, other than collection or default proceedings in the ordinary course of business;
(e) none of Sellers enters into any transaction or takes any other action that might cause or constitute a breach of any representation or warranty made by any of the Sellers in this Agreement;
(f) Sellers will amend, modify or alter any of the Bulk and Commercial Agreements, including any Bulk and Commercial Agreement that are in the process of being renegotiated as of the date of this Agreement, only in the ordinary course of business (and if Sellers so amend any such Bulk and Commercial Agreements, Sellers shall promptly provide Purchaser with a true, complete and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval accurate copy of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key SubsidiaryBulk and Commercial Agreements as so amended), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviiig) agreenone of Sellers agrees, commits or offers (in writing or otherwise), to take any of the foregoing actionsactions described in this Section 7.1.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Devcon International Corp)
Conduct of Business. (a) Except as (i) otherwise as expressly contemplated permitted by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on as set forth in Section 6.2 6.2(a) of the Sellers’ Partnership Disclosure Schedule; , (iii) approved as required by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcyapplicable Laws, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from as provided in any changes to applicable Laws, from and after Partnership Material Contract in effect as of the date of this Agreement and until (including the earlier of the Closing and the termination of this Partnership Agreement, Sellers shall and shall cause each Purchased Subsidiary ) or (v) as consented to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing by Parent (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), during the period from the date of this Agreement until the Effective Time, each of the Partnership, the General Partner and the Managing GP shall, and shall cause each of their respective Subsidiaries to, (A) conduct its business in the ordinary course of business consistent with past practice, (B) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationship with it and retain the services of its present officers and key employees, (C) use commercially reasonable efforts to keep in full force and effect all material Partnership Permits and all material insurance policies maintained by the Partnership and its Subsidiaries, other than changes to such Seller policies made in the ordinary course of business, and (D) use commercially reasonable efforts to comply in all material respects with all applicable Laws and the requirements of all Partnership Material Contracts. Without limiting the generality of the foregoing, except (i) as expressly permitted by this Agreement, (ii) as set forth in Section 6.2(a) of the Partnership Disclosure Schedule, (iii) as required by applicable Laws, (iv) as provided in any Partnership Material Contract in effect as of the date of this Agreement (including the Partnership Agreement) or (v) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, the Partnership, the General Partner and the Managing GP shall not, and shall not permit any of the Key their respective Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contractamend the Organizational Documents (whether by merger, including under the UST Credit Facilitiesconsolidation, without obtaining the prior approval conversion or otherwise) of such action from Sponsorentity in any manner that would reasonably be expected to prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement;
(ii) issuedeclare, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declareauthorize, set aside or pay any dividend or make any distribution (whether payable in cash, securities equity or property in respect of the Common Units, other property or by allocation of additional Indebtedness than regular quarterly cash distributions on the Common Units not to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiariesexceed $0.285 per Common Unit;
(iviii) make any acquisition or disposition, directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire indirectly (including by merger, consolidation, combination or acquisition of Equity Interests assets, tender or assets) exchange offer or otherwise), of any Person business or any corporation, partnership, limited liability company, joint venture or other business organization or division thereof (or any property or assets of any other Person, other than acquisitions of portfolio assets and acquisitions or dispositions (x) in the Ordinary Course ordinary course of Businessbusiness or (y) outside the ordinary course of business the consideration for which does not exceed $25,000,000 in a transaction (or series of related transactions) where value in the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000aggregate;
(xiviv) altersplit, whether through combine, divide, subdivide, reverse split, reclassify, recapitalize or effect any other similar transaction with respect to any of such entity’s capital stock or other equity interests;
(v) solely with respect to the Partnership, adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization dissolution or in any other manner, the legal structure restructuring or ownership of any Key Subsidiary, or adopt or approve a plan with respect to or agreement of reorganization under any of the foregoingbankruptcy or similar law;
(xvvi) enter into waive, release, assign, settle or compromise any Contract that limits claim, action or otherwise restricts proceeding, including any state or that federal regulatory proceeding seeking damages or injunction or other equitable relief, which waiver, release, assignment, settlement or compromise would reasonably be expected to, after the Closing, restrict or limit to result in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;a Partnership Material Adverse Effect; or
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviiivii) agree, in writing or otherwise, to take any of the foregoing actions, or take any action or agree, in writing or otherwise, to take any action, including proposing or undertaking any merger, consolidation or acquisition, in each case, that would reasonably be expected to prohibit, prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement.
(b) Except (i) as expressly permitted by this Agreement, (ii) as set forth in Section 6.2(b) of the Parent Disclosure Schedule, (iii) as required by applicable Laws, (iv) as provided in any Parent Material Contract in effect as of the date of this Agreement or (v) as consented to in writing by the Partnership (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (A) conduct its business in the ordinary course of business consistent with past practice, (B) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationship with it and retain the services of its present officers and key employees, (C) use commercially reasonable efforts to keep in full force and effect all material Parent Permits and all material insurance policies maintained by the Parent and its Subsidiaries, other than changes to such policies made in the ordinary course of business, and (D) use commercially reasonable efforts to comply in all material respects with all applicable Laws and the requirements of all Parent Material Contracts. Without limiting the generality of the foregoing, except (i) as expressly permitted by this Agreement, (ii) as set forth in Section 6.2(b) of the Parent Disclosure Schedule, (iii) as required by applicable Laws, (iv) as provided in any Parent Material Contract in effect as of the date of this Agreement or (v) as consented to in writing by the Partnership (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, Parent shall not, and shall not permit any of its Subsidiaries to:
(i) amend Parent’s or any of its Subsidiaries’ Organizational Documents (whether by merger, consolidation, conversion or otherwise) in any manner that would reasonably be expected to (a) prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement, or (b) adversely affect (1) the economic benefits to be obtained by the holders of Public Common Units upon the consummation of the Merger or (2) the terms of the Parent Common Stock in any material respect;
(ii) declare, authorize, set aside or pay any dividend or distribution payable in cash, stock or property in respect of any of Parent’s capital stock, other than regular quarterly cash dividends on the Parent Common Stock in the ordinary course of business consistent with past practice and other than dividends or distributions with a record date after the Effective Time; provided, however, that nothing contained herein shall prohibit Parent from increasing the quarterly cash dividend on Parent Common Stock;
(iii) make any acquisition or disposition, directly or indirectly (including by merger, consolidation, acquisition of assets, tender or exchange offer or otherwise), of any business or any corporation, partnership, limited liability company, joint venture or other business organization or division thereof or any property or assets of any other Person, other than acquisitions or dispositions (x) in the ordinary course of business or (y) outside the ordinary course of business the consideration for which does not exceed $25,000,000 in value in the aggregate;
(iv) merge, consolidate or enter into any other business combination transaction or agreement with any Person;
(v) split, combine, divide, subdivide, reverse split, reclassify, recapitalize or effect any other similar transaction with respect to any of Parent’s capital stock or other equity interests;
(vi) issue or sell any Parent Shares, issue or sell any preferred stock, or grant or issue any warrant, option, right, contract, call, or other security or instrument granting the holder thereof the right to acquire Parent Shares or any other capital stock of the Parent or its Subsidiaries, in each case other than pursuant to a Benefit Plan of the Parent existing on the date of this Agreement;
(vii) solely with respect to Parent, adopt a plan or agreement of complete or partial liquidation, dissolution or restructuring or a plan or agreement of reorganization under any bankruptcy or similar law;
(viii) directly or indirectly purchase, acquire or otherwise become beneficial owner of (or direct the Partnership to repurchase, redeem or otherwise acquire) any Common Units (other than Common Units held by Parent or its Subsidiaries on the date of this Agreement);
(ix) waive, release, assign, settle or compromise any claim, action or proceeding, including any state or federal regulatory proceeding seeking damages or injunction or other equitable relief, which waiver, release, assignment, settlement or compromise would reasonably be expected to result in a Parent Material Adverse Effect; or
(x) agree, in writing or otherwise, to take any of the foregoing actions, or take any action or agree, in writing or otherwise, to take any action, including proposing or undertaking any acquisition or disposition, in each case, that would reasonably be expected to prohibit, prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Archrock, Inc.), Merger Agreement (Archrock Partners, L.P.)
Conduct of Business. (a) Except as (i) explicitly set forth in this Agreement or otherwise expressly contemplated by the Disclosure Statement and Plan or permitted under this Agreementwith the prior written consent of Required Backstop Parties, including during the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and until to the earlier of the Closing Date and the termination of date on which this AgreementAgreement is terminated in accordance with its terms, Sellers shall the Company shall, and shall cause each Purchased Subsidiary of its Subsidiaries to (A) conduct their operations carry on its business in the Ordinary Course ordinary course and use commercially reasonable efforts to:
(i) preserve intact its present business and its Post-Effective Date Business;
(ii) maintain in effect all of Businessits foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations (B) except where the failure to do so would not take any action inconsistent with this Agreement individually, or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course aggregate, have a Material Adverse Effect);
(iii) keep available the services of Business its officers and in all key employees; and
(iv) preserve its relationships with material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers suppliers, licensors, licensees, distributors and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth the Company or its Subsidiaries in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay connection with the ClosingPost-Effective Date Business.
(b) Subject to Without limiting the exceptions contained generality of the foregoing, except as explicitly set forth in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement or otherwise contemplated by the Disclosure Statement and until Plan, the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller Company shall not, and shall not permit any of its Subsidiaries to, take any of the Key Subsidiaries (and in following actions without the case prior written consent of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tothe Required Backstop Parties:
(i) take enter into any action with respect transaction that is material to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, Post-Effective Date Business without obtaining the prior approval of such action from Sponsorthe Required Backstop Parties other than transactions expressly contemplated by the RSA, the Plan, this Agreement, or any Order of the Bankruptcy Court;
(ii) issueenter into any transaction that is with any Person that, sellcollectively with its Affiliates, pledgeincluding any Related Funds or any other investor acting in concert therewith, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests beneficially owns more than 10% of the Transferred Entitiesequity in any Debtor (other than the Company and its Subsidiaries), including, without limitation, Xxxxxx Industries Ltd. or grant any options, warrants its Affiliates or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity InterestsSubsidiaries;
(iii) declareamend its articles of incorporation, set aside bylaws or pay any dividend or make any distribution other similar organizational documents (whether by merger, consolidation or otherwise) other than in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value connection with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased SubsidiariesNew Organizational Documents;
(iv) directly or indirectly, purchase, redeem or otherwise acquire incur any Equity Interests capital expenditures or any rights to acquire any Equity Interests obligations or liabilities in respect thereof, other than within the ordinary course of any Seller or Key Subsidiarybusiness;
(v) materially change acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than in the ordinary course of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Casesbusiness;
(vi) adopt enter into, amend or modify in any amendments to its Organizational Documents material respect or permit the adoption of terminate any amendment Material Contract or otherwise waive, release or assign any material rights, claims or benefits of the Organizational Documents Company or any of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereofits Subsidiaries;
(vii) sellenter into any contract, pledgeagreement, lease, transfer, assign arrangement or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than understanding that is a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2)Non-Competition Agreement;
(viii) sell, lease or otherwise transfer, or create or incur any Lien on, any of the Company’s or its Subsidiaries’ assets, securities, properties, interests or businesses, other than (A) incur or assume any Indebtedness for borrowed money or issue any debt securitiesin the ordinary course of business, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assumethe sale or other disposition of all or a portion of the business of Total E&S Inc. and (C) sales of assets, guaranteesecurities, endorse properties, interests or otherwise become liable businesses with a sale price (including any related assumed indebtedness) that does not exceed $250,000 individually or responsible (whether directly, contingently or otherwise) for $25,000,000 in the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiariesaggregate;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than in connection with actions permitted by Section 6.03(b)(iv) or Section 6.03(b)(v), make any loans, advances or capital contributions to, or investments in, any other Person, other than in the discharge or satisfaction ordinary course of any Indebtedness when due in accordance with its originally scheduled termsbusiness;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business unless required by contract, with respect to Employees who are not current directors, officers or former directors other executives or officers key employees of Sellers the Company or Seller Key Personnel), its Subsidiaries: (B1) grant or increase any severance or termination pay to (or amend any Employee of Sellers existing severance pay or termination arrangement) or (2) enter into any Purchased Subsidiary except for employment, deferred compensation or other similar agreement (or amend any such existing agreement); (B) increase benefits payable under any existing severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), policies; (C) establishincrease compensation, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial bonus or other assumption used to calculate funding obligations benefits except for increases in the ordinary course of business consistent with respect to any Benefit Plan past practice for persons other than directors, officers or any change to other executives or key employees of the manner in which contributions to any Benefit Plan are made Company or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs its Subsidiaries; or Liabilities pursuant to such plan, (D) grant terminate any awards under any Benefit Plan (including any equity officer, director or equity-based awards), (E) increase other executive or promise to increase key employee of the Company or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Planits Subsidiaries;
(xi) modifysettle, amendor offer or propose to settle, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7A) in any material respect in a manner litigation, investigation, arbitration, proceeding or other claim involving or against the Company or any of its Subsidiaries, (B) any stockholder litigation or dispute against the Company or any of its officers or directors or (C) any litigation, arbitration, proceeding or dispute that is adverse relates to any Seller that is a party thereto, other than in the Ordinary Course of Business;transactions contemplated hereby; or
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by mergeragree, consolidation, combination resolve or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect commit to do any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Backstop Commitment Agreement (C&J Energy Services Ltd.), Backstop Commitment Agreement
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including During the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and continuing until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this AgreementDate, without except with the prior written consent of Purchaser Buyer, Seller shall:
(which consent shall a) (i) maintain its corporate existence, (ii) pay or perform the Liabilities of the Purchased Assets when due, and (iii) carry on the Purchased Assets in the usual, regular and ordinary course in a manner consistent with past practice and in accordance with the provisions of this Agreement (including, without limitation, performance under the Assigned Contracts) and in compliance with all Laws, Business Authorizations and Assigned Contracts;
(b) use its commercially reasonable efforts consistent with past practices and policies to preserve its relationships with customers, suppliers, distributors, licensors, licensees and others having dealings with the business relating to the Purchased Assets; provided that Seller is not be unreasonably withheldauthorized to, conditioned or delayed), such Seller and shall not, and shall not permit make any commitments on behalf of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from SponsorBuyer;
(iic) issueuse its commercially reasonable efforts to maintain the assets, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other properties and rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether included in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except Assets in the Ordinary Course same state of Business or pursuant to a Contract in existence repair, order and conditions as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect they are on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers reasonable wear and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plantear excepted;
(xid) modifymaintain the Books and Records in accordance with past practice, amend, terminate or waive any rights under any Affiliate Contract or and use its commercially reasonable efforts to maintain in full force and effect all Business Authorizations and Seller Material Contract (except for any dealer sales Policies and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of BusinessProcedures;
(xiie) enter into promptly notify Buyer of any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination event or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions occurrence not in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any ordinary course of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected toBusiness, after the Closingincluding, restrict or limit in without limitation, any material respect (A) Purchaser default under any Assigned Contract to the extent not inconsistent with applicable antitrust or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facilitycompetition laws; and
(xviiif) agreeuse its commercially reasonable efforts to (i) conduct the Business in such a manner that on the Closing Date the representations and warranties of Parent and Seller contained in this Agreement shall be true and correct, in writing or otherwiseas though such representations and warranties were made on and as of such date, to take any and (ii) cause all of the foregoing actionsconditions to the obligations of Buyer under this Agreement to be satisfied as soon as practicable following the date hereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Penson Worldwide Inc), Asset Purchase Agreement (Broadridge Financial Solutions, Inc.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including During the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and or the termination of this AgreementAgreement in accordance with its terms, Sellers shall and shall cause each Purchased Subsidiary to except (Ai) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with as permitted or contemplated by this Agreement or with any Ancillary Agreement or as required by the consummation of the ClosingConsent Order, (Cii) use reasonable best efforts as Purchaser shall otherwise consent in writing (such consent not to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), (iii) as required by applicable Law, or (iv) as set forth on Section 5.4(a) of the Seller Disclosure Schedule, Seller shall, and shall cause each of its applicable Affiliates to, solely in respect of the Business, (A) use commercially reasonable efforts to conduct the Business (1) in all material respects in the ordinary course of business consistent with past practice and (2) in accordance with applicable Law, and (B) use commercially reasonable efforts to preserve substantially intact the Business and its relationship with its customers, suppliers, distributors, wholesalers, retailers, key employees and Employee Representative Bodies; provided, that (x) no action by Seller or any its Affiliates to the extent expressly permitted by Section 5.4(b) will be a breach of this Section 5.4(a) and (y) if Seller seeks the consent of Purchaser to take any action prohibited by Section 5.4(b), and any such consent is withheld by Purchaser, the failure to take such action will not be deemed to be a breach of this Section 5.4(a).
(b) During the period from the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, except (w) as permitted or contemplated by this Agreement or any Ancillary Agreements or as required by the Consent Order, (x) as Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), (y) as required by applicable Law or (z) as set forth on Section 5.4(b) of the Seller Disclosure Schedule, Seller shall not, and shall cause each of its applicable Affiliates not permit to, solely in respect of the Program Business, take any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tofollowing actions:
(i) take modify or amend in any action material respect, cancel or terminate (other than, for the avoidance of doubt, any expiration in accordance with respect its terms) or become party to which or bound by any Seller has granted approval rights to Sponsor under any Material Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course ordinary course of business consistent with past practice;
(ii) settle or compromise any Action Related to the Business, except where such settlement or compromise does not (A) involve payments (contingent or otherwise) by the Program Business in excess of $2,500,000 in the aggregate that are not paid in full prior to the Closing, or pursuant to a Contract (B) impose any material non-monetary restrictions, liabilities or obligations (unless such restrictions, liabilities and obligations are immaterial ordinary course terms typically included in existence as the settlement or compromise of the date hereof applicable type of claim, action or proceeding) on the Program Business (or, following the Closing, on Purchaser or entered into in compliance with this Section 6.2any of its Affiliates);
(viiiiii) settle or compromise any patent-related Action involving any Transferred Patent or that otherwise is Related to the Business;
(iv) terminate or fail to renew any Business Permit, except in the ordinary course of business consistent with past practice;
(v) incur, create or assume any Lien on any material Transferred Assets, other than (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility a Permitted Lien or (B) assume, guarantee, endorse any Lien that will be discharged at or otherwise become liable or responsible (whether directly, contingently or otherwise) for prior to the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the SubsidiariesClosing;
(ixvi) discharge sell, pledge, dispose of or satisfy transfer, or authorize the sale, pledge, disposition or transfer of, any Indebtedness in excess of $100,000,000 Transferred Assets, other than (A) sales, pledges, dispositions or transfers in the discharge ordinary course of business consistent with past practice, (B) sales or satisfaction dispositions of any Indebtedness when due assets in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and Contracts set forth on Section 4.10 of the Sellers’ Seller Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement Schedule or as may be required by applicable Law Law, or TARP (C) the expiration of Intellectual Property in accordance with its final, non-renewable statutory term or under final refusal during the course of prosecution;
(vii) grant any enhanced restrictions licenses, sublicenses, covenants not to assert or similar rights with respect to any Transferred IP other than non-exclusive rights granted in the ordinary course of business consistent with past practice;
(viii) except as required by any existing Contracts or Benefit Plans as in effect on executive compensation agreed to by Sellers and Sponsorthe date of this Agreement, (A) materially increase the compensation or other benefits of payable or provided to any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel)Employee, (B) grant hire or engage the services of any severance Business Employee or termination pay Business Contractor, unless such hiring or engagement is to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as replace the result services of a settlement of any pending Claim Business Employee or charge involving a Governmental Authority Business Contractor, who is classified at or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel)under Grade 14, (C) establish, adopt, enter into, into or amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or other material benefit or compensation plan, policy or arrangement for the benefit of any change to the manner Business Employee or any of their beneficiaries (except, in which contributions to any Benefit Plan are made or the basis on which such contributions are determinedcase of clause (C), except where any such action would reduce Sellers’ costs the cost of which is borne exclusively by Seller or Liabilities pursuant to such planits Affiliates), (D) terminate the employment of any of the Business Employees classified at or above Grade 14 (other than for cause) or otherwise transfer or cause any of the Business Employees to cease to be a Business Employee, or cause any employee or individual service provider of either Seller or its Affiliates who is not a Business Employee as of the date of this Agreement to become a Business Employee, or (E) grant any awards new awards, or amend or modify the terms of any outstanding awards, under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers a Business Employee or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise take any discretion action to accelerate the time vesting or lapsing of restrictions or payment or vesting of any compensation or benefits under any Benefit PlanPlan with respect to a Business Employee;
(ix) (A) make, change or revoke any material Tax election, (B) change any material method or period of accounting for Tax purposes, (C) prepare any material Tax Return in a manner inconsistent with elections made, positions taken or methods used in preparing or filing similar Tax Returns in prior periods, or (D) agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of a material amount of Taxes;
(x) subject to Section 6.6 or as otherwise required by applicable Law or any Contract in effect as of the date hereof, enter into, adopt, establish, terminate, modify or amend any collective bargaining agreement, works council agreement, or other union-related agreement or commit to enter into any such agreements; provided, however, that Seller may adopt, establish, terminate, modify or amend any collective bargaining agreement, works council agreement, or other union-related agreement if (A) the cost of providing the benefits thereunder would not result in a material cost to the Program Business or Purchaser and its Affiliates, or (B) such adoption, establishment, termination, modification or amendment (x) does not materially increase or decrease benefits for any Business Employee, (y) affects a broad cross-section of employees of Seller or its Affiliates in addition to the Business Employees, and (z) does not materially increase in any way severance entitlements nor provides for any guarantee of employment for any fixed duration;
(xi) modify, amend, terminate (A) conduct sales of any Product Inventory or waive Excluded Inventory outside of the ordinary course of business consistent with past practice; or (B) ship or sell any rights under any Affiliate Contract Product Inventory or Seller Material Contract (except for any dealer Excluded Inventory in quantities that are not materially consistent with demand and the ordinary shipment and sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in practices of the Ordinary Course of Program Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7accelerate or delay the delivery or sale of products or the incurrence of capital expenditures, or offer discounts on sale of products or premiums on purchase of raw materials, except in the ordinary course of business consistent with past practice;
(xiiiA) acquire (including by merger, consolidation, combination accelerate or acquisition delay collection of Equity Interests any accounts receivable in advance of or assets) any Person beyond their regular due dates or business or division thereof (other than acquisitions of portfolio assets and acquisitions the dates when the same would have been collected in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, (B) accelerate or delay payment of any accounts payable in a transaction advance of their due date or the date such liability would have been paid in the ordinary course of business consistent with past practice or (C) take any action outside of the ordinary course of business consistent with past practice with respect to inventory or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;fail to use commercially reasonable efforts to maintain inventory at levels consistent with past practice; or
(xiv) alteragree or commit to take any action described in this Section 5.4(b).
(c) Notwithstanding the foregoing, whether through a complete nothing in this Section 5.4 shall prohibit or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or otherwise restrict in any other manner, way the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any operation of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser business of Seller or any of its Subsidiaries or any successor thereto or Affiliates, except solely with respect to the conduct of the Business (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (ASection 5.4(a)) or the Program Business (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate case of Section 5.4(b)) as expressly set forth herein, and nothing contained herein shall give Purchaser any right to manage, control, direct or be involved in connection with any single project the management of Seller or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of its Affiliates at any time or the foregoing actionsBusiness or the Program Business prior to the Closing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Celgene Corp /De/), Asset Purchase Agreement (Amgen Inc)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated as permitted by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on as set forth in Section 6.2 6.2(a) of the Sellers’ Partnership Disclosure Schedule; , (iii) approved as required by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcyapplicable Laws, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from as provided in any changes to applicable Laws, from and after Partnership Material Contract in effect as of the date of this Agreement and until (including the earlier of the Closing and the termination of this Partnership Agreement, Sellers shall and shall cause each Purchased Subsidiary ) or (v) as consented to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing by Parent (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), during the period from the date of this Agreement until the Effective Time, each of the Partnership and the General Partner shall, and shall cause each of their respective Subsidiaries to, (A) conduct its business in the ordinary course of business consistent with past practice in all material respects; provided, that this Section 6.2(a)(A) shall not prohibit the Partnership and its Subsidiaries from taking commercially reasonable actions outside of the ordinary course of business or not consistent with past practice in response to (1) changes or developments resulting or arising from the COVID-19 pandemic or (2) other changes or developments that would reasonably be expected to cause a reasonably prudent company similar to the Partnership to take commercially reasonable actions outside of the ordinary course of business consistent with past practice, (B) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees, if any, (C) use commercially reasonable efforts to keep in full force and effect all material Partnership Permits and all material insurance policies maintained by the Partnership and its Subsidiaries, other than changes to such Seller policies made in the ordinary course of business, and (D) use commercially reasonable efforts to comply in all material respects with all applicable Laws and the requirements of all Partnership Material Contracts; provided, that no action or inaction by the Partnership, the General Partner, or their respective Subsidiaries with respect to the matters specifically addressed by any portion of the remaining provisions of this Section 6.2(a) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provisions of this Section 6.2(a). During the period from the date of this Agreement until the Effective Time, the General Partner shall declare and shall cause the Partnership to pay regular quarterly cash distributions to the holders of the Common Units, consistent with past practice, for each completed calendar quarter ending prior to the Closing Date, to the extent the Closing does not occur prior to the applicable record date established by the General Partner with respect to such quarterly distribution consistent with past practice; provided that, in no event shall the regular quarterly cash distributions declared or paid by the Partnership to the holders of the Common Units be less than $0.455 per Common Unit; provided, further, that neither the General Partner nor the Partnership shall be required to take any action pursuant to this sentence that would violate applicable Law, the Organizational Documents of the Partnership or any Contract to which the General Partner or the Partnership is a party as of the date hereof and set forth in Section 6.2(a) of the Partnership Disclosure Schedule. Without limiting the generality of the foregoing, except (i) as expressly permitted by this Agreement, (ii) as set forth in Section 6.2(a) of the Partnership Disclosure Schedule, (iii) as required by applicable Laws, (iv) as provided in any Partnership Material Contract in effect as of the date of this Agreement (including the Partnership Agreement) or (v) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, the Partnership and the General Partner shall not, and shall not permit any of the Key their respective Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contractamend the Organizational Documents (whether by merger, including under the UST Credit Facilitiesconsolidation, without obtaining the prior approval conversion or otherwise) of such action from Sponsorentity in any manner that would reasonably be expected to prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement;
(ii) subject to Section 6.10, with respect to the Partnership only, declare, authorize, set aside or pay any distribution payable in cash, equity or property in respect of the Common Units other than regular quarterly distributions that are declared and paid consistent with past practice;
(iii) issue, sell, pledge, create an Encumbrance or otherwise dispose of of, grant, transfer, encumber, or authorize the issuance, sale, pledge, Encumbrance disposition, grant, transfer, lease, license, guarantee or disposition of encumbrance of, any Equity Interests equity securities of the Transferred EntitiesPartnership or any of its Subsidiaries, or grant securities convertible or exchangeable into or exercisable for any equity securities, or any options, warrants or other rights of any kind to purchase or obtain (including upon conversion, exchange or exercise) acquire any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, equity securities or such convertible or exchangeable securities or interests other property than issuances of Common Units upon vesting or by allocation settlement of additional Indebtedness to any Seller Partnership LTIP Awards that are outstanding on the date of this Agreement or any Key Subsidiary without receipt of fair value otherwise granted in compliance with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiariesthis Agreement;
(iv) directly split, combine, divide, subdivide, reverse split, reclassify, recapitalize or indirectly, purchase, redeem effect any other similar transaction with respect to any of such entity’s capital stock or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiaryother equity interests;
(v) materially change adopt a plan or agreement of complete or partial liquidation, dissolution or restructuring or a plan or agreement of reorganization under any of its financial accounting policies bankruptcy or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable similar Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt waive, release, assign, settle or compromise any amendments to its Organizational Documents Proceeding, including any state or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary federal regulatory Proceeding seeking damages or effect a split, combination or reclassification injunction or other adjustment of Equity Interests of any Purchased Subsidiary equitable relief, which waiver, release, assignment, settlement or compromise would reasonably be expected to result in a recapitalization thereofPartnership Material Adverse Effect;
(vii1) sellchange its fiscal year or any method of Tax accounting, pledge(2) make, leasechange or revoke any material Tax election (including any entity classification election under Treasury Regulations Section 301.7701-3), transfer(3) settle or compromise any material liability for Taxes or any audit, assign examination or dispose other legal Proceeding in respect of a material amount of Taxes, (4) file any material amended Tax Return, (5) enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any material Tax, (6) surrender any right to claim a material Tax refund or (7) consent to any extension of waiver of the statute of limitations period applicable to any material Tax claim or assessment;
(viii) make any material changes in financial accounting methods, principles or practices (or change an annual accounting period), except insofar as may be required by a change in GAAP;
(ix) engage in any activity or conduct its business in a manner that would cause less than 90% of the gross income of the Partnership for any calendar quarter since its formation and prior to the Effective Time to be treated as “qualifying income” within the meaning of Section 7704(d) of the Code;
(x) except as required by the terms of any Purchased Asset Partnership Benefit Plan existing and in effect on the date of this Agreement or permit as contemplated by this Agreement, (1) establish, adopt, materially amend or modify, commence participation in or terminate (or commit to establish, adopt, materially amend or modify, commence participation in or terminate) any Purchased Asset to become subject to material Partnership Benefit Plan (or any Encumbranceplan or arrangement that would be a material Partnership Benefit Plan if in effect as of the date of this Agreement), (2) materially increase in any manner the compensation, severance or benefits of any of the current or former directors, officers, employees, consultants, independent contractors or other than a Permitted Encumbranceservice providers of the General Partner, the Partnership or any of their respective Subsidiaries, or enter into or amend any employment, severance, termination, retention or consulting agreement, in each case, except other than in the Ordinary Course ordinary course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsorbusiness, (A3) increase the compensation or benefits of accelerate any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation material rights or benefits under any Partnership Benefit Plan;, or (4) grant or materially amend any Partnership LTIP Awards or other equity awards; or
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions, or take any action or agree, in writing or otherwise, to take any action, including proposing or undertaking any merger, consolidation, acquisition or disposition, in each case, that would reasonably be expected to prohibit, prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement.
(b) Except (i) as permitted by this Agreement, (ii) as set forth in Section 6.2(b) of the Parent Disclosure Schedule, (iii) as required by applicable Laws, (iv) as provided in any Parent Material Contract in effect as of the date of this Agreement, or (v) as consented to in writing by the Partnership (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (A) conduct its business in the ordinary course of business consistent with past practice in all material respects; provided, that this Section 6.2(b)(A) shall not prohibit Parent and its Subsidiaries from taking commercially reasonable actions outside of the ordinary course of business or not consistent with past practice in response to (1) changes or developments resulting or arising from the COVID-19 pandemic or (2) other changes or developments that would reasonably be expected to cause a reasonably prudent company similar to Parent to take commercially reasonable actions outside of the ordinary course of business consistent with past practice, (B) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees, (C) use commercially reasonable efforts to keep in full force and effect all material Parent Permits and all material insurance policies maintained by Parent and its Subsidiaries, other than changes to such policies made in the ordinary course of business, and (D) use commercially reasonable efforts to comply in all material respects with all applicable Laws and the requirements of all Parent Material Contracts; provided, that no action or inaction by Parent or its Subsidiaries with respect to the matters specifically addressed by any portion of the remaining provisions of this Section 6.2(b) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provisions of this Section 6.2(b). Without limiting the generality of the foregoing, except (i) as expressly permitted by this Agreement, (ii) as set forth in Section 6.2(b) of the Parent Disclosure Schedule, (iii) as required by applicable Laws, (iv) as provided in any Parent Material Contract in effect as of the date of this Agreement or (v) as consented to in writing by the Partnership (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, Parent shall not, and shall not permit any of its Subsidiaries to:
(i) amend Parent’s or any of its Subsidiaries’ Organizational Documents (whether by merger, consolidation, conversion or otherwise) in any manner that would reasonably be expected to (a) prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement or (b) adversely affect (1) the economic benefits to be obtained by Partnership Unaffiliated Unitholders or (2) the terms of the Parent Common Stock in any material respect;
(ii) declare, authorize, set aside or pay any dividend or distribution payable in cash, stock or property in respect of any of Parent’s capital stock;
(iii) merge, consolidate or enter into any other business combination transaction or agreement with any Person in which such other Person is the surviving entity;
(iv) split, combine, divide, subdivide, reverse split, reclassify, recapitalize or effect any other similar transaction with respect to any of Parent’s capital stock or other equity interests;
(v) issue, sell or reclassify any capital stock of Parent or its Subsidiaries, or grant, issue or reclassify any warrant, option, right, contract, call, or other security or instrument granting the holder thereof the right to acquire capital stock of Parent or its Subsidiaries, in each case other than the issuance or sale, in one or more transactions pursuant to a Parent Equity Plan in the ordinary course of business consistent with past practice;
(vi) solely with respect to Parent, adopt a plan or agreement of complete or partial liquidation, dissolution or restructuring or a plan or agreement of reorganization under any bankruptcy or similar Law and, with respect to any Subsidiary of Parent, adopt a plan or agreement of complete or partial liquidation, dissolution or restructuring or a plan or agreement of reorganization under any bankruptcy or similar law that would reasonably be expected to prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement;
(vii) waive, release, assign, settle or compromise any Proceeding, including any state or federal regulatory Proceeding seeking damages or injunction or other equitable relief, which waiver, release, assignment, settlement or compromise would reasonably be expected to result in a Parent Material Adverse Effect;
(1) change its fiscal year or any method of Tax accounting, (2) make, change or revoke any material Tax election (including any entity classification election under Treasury Regulations Section 301.7701-3), (3) settle or compromise any material liability for Taxes or any audit, examination or other legal Proceeding in respect of a material amount of Taxes, (4) file any material amended Tax Return, (5) enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any material Tax, (6) surrender any right to claim a material Tax refund or (7) consent to any extension of waiver of the statute of limitations period applicable to any material Tax claim or assessment; or
(ix) make any material changes in financial accounting methods, principles or practices (or change an annual accounting period), except insofar as may be required by a change in GAAP; or
(x) agree, in writing or otherwise, to take any of the foregoing actions, or take any action or agree, in writing or otherwise, to take any action, including proposing or undertaking any acquisition or disposition, in each case, that would reasonably be expected to prohibit, prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Green Plains Partners LP), Merger Agreement (Green Plains Inc.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by Any Credit Party or permitted under this Agreementany of its Subsidiaries is enjoined, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved restrained or in any way prevented by the Bankruptcy Court (order of any court or any other court or other Governmental Authority in connection with from conducting, or otherwise ceases to conduct for any other bankruptcyreason whatsoever, insolvency all or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as part of any its business if such date when such representation or warranty is made or deemed to be made and (E) not take any action that would cessation could reasonably be expected to materially prevent or delay have a Material Adverse Effect, then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Closing.
(b) Subject Collateral Agent, upon the written request of the Required Lenders, shall by written notice to the exceptions contained Borrowers, take any or all of the following actions, without prejudice to the rights of any Agent, any Lender or the holder of any Note to enforce its claims against any Credit Party (provided that, if an Event of Default specified in Section 12.05 shall occur with respect to a Borrower, the result which would occur upon the giving of written notice by the Collateral Agent as specified in clauses (i) through and (ii) below shall occur automatically without the giving of any such notice): (i) declare the Total Commitment terminated, whereupon all Commitments of each Lender shall forthwith terminate immediately and any Commitment Commission shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans and the Notes and all Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Credit Party; (iii) [Reserved]; (iv) of Section 6.2(a)[Reserved]; (v) enforce, each Seller agrees thatas the Collateral Agent, from and after the date of this Agreement and until the earlier all of the Closing Liens and security interests created pursuant to the termination Security Documents; (vi) enforce each Guaranty; and (vii) apply any cash collateral held by the Administrative Agent or the Collateral Agent pursuant to Section 6.02 to the repayment of this Agreementthe Obligations. In the event that the Required Lenders direct the Collateral Agent to exercise the rights set forth in subsection (v) herein, without the prior written consent Credit Parties agree to coordinate and cooperate with the Required Lenders, the Collateral Agent, and their respective counsel to facilitate and expedite all required filings required to be made under Financial Services Laws in connection with the exercise of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall notrights within the legally-required timeframes for such filings and submissions, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required promptly furnish all information requested by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining AgreementRequired Lenders, the Settlement Agreement, the UAW Retiree Settlement Agreement Collateral Agent or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate their respective counsel in connection with any single project such filing. All payments received following acceleration or group any enforcement of related projects;
(xvii) open remedies or reopen Liens shall be applied pursuant to any major production facility; and
(xviii) agreeAgreement Among Lenders. Notwithstanding anything to the contrary contained in this Section 12, in writing or otherwisethe event that the Credit Parties fail (or, but for the operation of this paragraph, would fail) to take any comply with the covenants set forth in Sections 11.08, 11.09 and 11.10 (such applicable covenants, the “Financial Performance Covenants”) as of the foregoing actionslast day of any fiscal quarter, at any time after such last day until the day that is 15 days after the date the certificate calculating the Financial Performance Covenants for such fiscal quarter is required to be delivered pursuant to Section 10.01(g) or, if earlier, on the date on which such certificate is delivered, Holdings shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of Holdings (collectively, the “Cure Right”), which cash shall be contributed as common Equity Interests to the Revolving Borrower (such contributed amount, the “Cure Amount”); provided, however, that such Cure Amount shall not exceed the amounts set forth below and such Financial Performance Covenants shall be recalculated by (x) increasing Consolidated EBITDA for purposes of any cure of Sections 11.08 and 11.09 and (y) increasing cash for purposes of Section 11.10, in each case with respect to such fiscal quarter and any four-quarter period that contains such fiscal quarter, solely for the purpose of measuring the Financial Performance Covenants and not for any other purpose under this Agreement (including any “baskets”), by an amount equal to the Cure Amount; provided, further, that, (i) until the Maturity Date there shall be no more than five Cure Rights exercised in the aggregate, and no more than two Cure Rights exercised during any four consecutive fiscal quarter period and not in successive fiscal quarters, (ii) for purposes of this paragraph, the Cure Amount shall (x) be no greater than the amount required for purposes of complying with the Financial Performance Covenant and (y) not exceed $4,000,000; provided that the aggregate amount of all Cure Amounts shall not exceed $10,000,000 and (iii) for the avoidance of doubt, in recalculating the Financial Performance Covenants by increasing Consolidated EBITDA as set forth above, there shall be no pro forma effect given to any reduction of Loans with the Cure Amount in such recalculation of the Financial Performance Covenants for the applicable fiscal period and any four-quarter period that contains such fiscal quarter (but pro forma effect shall be given to such reduction of Loans with the Cure Amount in subsequent fiscal periods). If, after giving effect to the adjustments in this paragraph, Holdings shall then be in compliance with the requirements of the Financial Performance Covenants, Holdings shall be deemed to have satisfied the requirements of the Financial Performance Covenants as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of the Financial Performance Covenants that had occurred shall be deemed cured for the purposes of this Agreement. In the event that no Event of Default exists other than that arising due to failure of the Credit Parties to comply with the Financial Performance Covenants, then until the expiration of the periods set forth above, neither Administrative Agent, the Collateral Agent nor any Lender shall exercise any remedies set forth in Section 12 hereof or under any Credit Document until after Holdings’ ability to cure has lapsed and Holdings has not exercised such Cure Right. If Borrower intends to exercise its Cure Right in any fiscal quarter, Borrower shall deliver a notice thereof to the Administrative Agent and the Collateral Agent within five (5) Business Days following the date the certificate calculating the Financial Performance Covenants for such fiscal quarter is required to be delivered pursuant to Section 10.01(g) or, if earlier, on the date on which such certificate is delivered.
Appears in 2 contracts
Samples: Credit Agreement (International Money Express, Inc.), Credit Agreement (Fintech Acquisition Corp. II)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after From the date of this Agreement and hereof until the earlier of Closing Date, the Closing and Company shall, unless the termination of this Agreement, Sellers Parent shall and shall cause each Purchased Subsidiary to (A) conduct their operations otherwise consent in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any ) or except as described in Section 7.2 of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) Company Disclosure Schedule or (xvi), shall not permit any Purchased Subsidiary) toas otherwise specifically contemplated by this Agreement:
(ia) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of operate its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except business only in the Ordinary Course of Business and use commercially reasonable efforts to preserve intact its relationships with third parties that are material to its business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2)operations;
(viiib) (A) incur or assume maintain its books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years, and not make any Indebtedness for borrowed money or issue material change to any debt securitiesof its accounting principles, except for Indebtedness for borrowed money incurred as required by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the SubsidiariesGAAP;
(ixc) discharge not consummate any merger or satisfy consolidation with any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled termsPerson;
(xd) not amend or modify the Company’s Organizational Documents;
(e) not issue or sell any of its Equity Interests nor issue or grant any options, warrants, calls, rights, convertible securities or other than as is required by the terms agreements or commitments of a Parent Employee Benefit Plan and Policy any character pursuant to which it would be obligated to issue or sell any of its Equity Interests;
(in effect on the date hereof and set forth on Section 4.10 f) not sell, transfer, assign, convey, abandon or otherwise dispose of any assets of the Sellers’ Disclosure Schedule), any Assumed Plan Company (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay including to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determinedHolder), except where any such action would reduce Sellers’ costs (i) sales or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity dispositions not exceeding $25,000 individually or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation $75,000 in the Ordinary Course aggregate and (ii) sales or dispositions of Business inventory or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than obsolete equipment in the Ordinary Course of Business;
(xiig) not incur any Indebtedness other than Indebtedness pursuant to the Company Credit Agreement;
(h) not hire any employees;
(i) not enter into any Seller Contract which, if entered into prior to the date hereof, would constitute a Material Contract or exercise any right to terminate or amend any material terms of any existing Material Contract, other than the entry into, termination or amendment of such Contracts as contemplated by described in Section 6.77.2(i) of the Company Disclosure Schedule;
(xiiij) acquire use commercially reasonable efforts to operate the business of the Company in compliance, in all material respects, with (including by mergeri) all Laws applicable to the operation of the business of the Company, consolidation(ii) the material terms and conditions of the Material Contracts and Real Property Agreements, combination and (iii) all Permits material to the operation of the business of the Company;
(k) not terminate or acquisition amend, and use commercially reasonable efforts not to permit to lapse (prior to its applicable expiration date), any material Permit necessary for the operation of Equity Interests or assets) any Person or business or division thereof (the System as it is currently operated other than acquisitions (i) such terminations or lapses of portfolio assets such Permits which the Company reasonably believes are no longer necessary to the conduct of the business of the Company as currently conducted and acquisitions (ii) such amendments to such Permits as the Company believes are reasonably necessary for the operation of the business in the Ordinary Course of Business; provided, that the Company provides the Parent with advance written notice of any such event described in clause (i) in a transaction or (or series of related transactionsii) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000above;
(xivl) alter, whether through a complete not grant to or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, create for the legal structure or ownership benefit of any Key Subsidiary, third party any right of first refusal or adopt or approve a plan with respect similar preferential right to purchase any asset of the foregoingCompany;
(xvm) enter into not exercise any Contract that limits right of termination or otherwise restricts or that would reasonably be expected tononrenewal of, after and use commercially reasonable efforts to not permit to lapse, the Closing, restrict or limit insurance coverage under the policies set forth in any material respect (A) Purchaser or any Section 5.19 of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic areaCompany Disclosure Schedule;
(xvin) enter into not take any Contracts for capital expenditures, exceeding $100,000,000 action to accelerate the collection of any accounts receivable of the Company or delay the payment of accounts payable of the Company inconsistent with the principles described in Section 7.2(n) of the aggregate in connection with any single project or group of related projectsCompany Disclosure Schedule;
(xviio) open or reopen any major production facilityuse commercially reasonable efforts to resolve the matter set forth on Section 5.11 of the Company Disclosure Schedule; and
(xviiip) agree, in writing or otherwise, not agree to take any action or actions prohibited by any of the foregoing actionsclauses (a) through (o); provided, however, that this Section 7.2 shall not be construed to prohibit (i) the payment of any dividend or distribution in cash by the Company to any Holder in compliance with the Company’s Organizational Documents, (ii) any payments by the Company in respect of any obligations owing to any Holder or (iii) any other payments in the Ordinary Course of Business.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Rex Energy Corp), Merger Agreement (Markwest Energy Partners L P)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including From the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and Execution Date until the earlier of Closing Date, with respect to the Closing Assets and the termination of this AgreementCompanies, Sellers unless Buyer shall and shall cause each Purchased Subsidiary to (A) conduct their operations otherwise consent in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned),
(i) Seller shall, and Seller shall, to the extent it has the Legal Right, cause the Companies to:
(A) operate the Assets (or such Company’s assets, in the case of the Companies) only in the usual, regular and ordinary manner consistent with past practice, and use its commercially reasonable efforts to preserve its present business operations relating to the Assets (or such Company’s assets, in the case of the Companies);
(B) maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years, and comply in all material respects with all contractual and other obligations;
(C) maintain all material permits, approvals and registrations from and with Governmental Authorities applicable to the Assets (or such Company’s assets, in the case of the Companies) that are maintained by Seller or an Affiliate or a Company as of the date of this Agreement; and
(D) comply in all material respects with all applicable Laws and Orders to which the Assets (or such Company’s assets, in the case of the Companies) are subject;
(ii) Seller shall not, and shall Seller shall, to the extent it has the Legal Right, cause the Companies not permit to:
(A) convey, sell, transfer, mortgage, pledge, encumber, dispose or abandon any part of the Key Subsidiaries Assets (and or such Company’s assets, in the case of clauses the Companies) other than sales of Hydrocarbons in the ordinary course of business and sales of equipment that is no longer necessary in the operation of the Assets (i)or such Company’s assets, (ix), (xiiiin the case of the Companies) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to for which any Seller replacement equipment has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorbeen obtained;
(iiB) issuemodify or terminate any Material Contract, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) than any such Equity InterestsMaterial Contract that terminates according to its terms;
(iiiC) declareenter into any agreement that, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract if in existence as of the date hereof (or entered into in compliance with this Section 6.2)Execution Date, would be a Material Contract;
(viiiD) let lapse any of Seller’s insurance in force with respect to the Assets (Aor such Company’s assets, in the case of the Companies) incur as of the Execution Date; provided, however, that if any such insurance terminates pursuant to its terms in effect as of the Execution Date, Seller will be obligated to renew or assume any Indebtedness secure a replacement for borrowed money such insurance only if such renewal or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiariesreplacement is available on commercially reasonable terms;
(ixE) discharge incur, propose or satisfy commit any Indebtedness capital expenditures for an individual project or matter, or series of related projects or matters, in excess of $100,000,000 other than 100,000 (net to the discharge interest of Seller) except in case of emergency or satisfaction of any Indebtedness when due in accordance with its originally scheduled termsas may otherwise be required to prevent injury or damage to Persons, property or the environment or except for capital expenditures that have been approved prior to the Execution Date and set forth on Schedule 8.1(a)(ii)(E) or are covered by the AFE’s listed on Schedule 6.14;
(xF) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law Law, required by any Benefit Plan or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsorin the ordinary course of business consistent with past practice, (AI) increase in any manner or accelerate the vesting or payment of the compensation of or benefits of payable to (or severance pay for) any Employee of Sellers Available Employee, or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (BII) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, establish, amend or terminate any Benefit Plan (or any plan, program, agreement or arrangement that would be a Benefit Plan if in effect as of the date hereof) or any collective bargaining agreement to which any Available Employee is subject;
(G) settle, waive or compromise any claim or other proceeding in a manner that would adversely affect in any material respect the ownership, operation, or use of the Assets taken as a whole or that would impose a liability on Buyer or its Affiliates or the Companies at or after the Closing; or
(H) authorize or agree to take any of the actions prohibited by any of the foregoing clauses (A) through (G).
(iii) Seller shall, to the extent it has the Legal Right, cause the Companies to not engage in any practice, take any action or enter into any transaction outside the ordinary course of business. In addition, Seller shall, to the extent it has the Legal Right, cause the Companies not to:
(A) adopt any amendments to their governing or organizational documents, joint venture agreements or similar documents;
(B) issue, sell, split, combine, reclassify, redeem, acquire, or authorize any shares of its capital stock or other securities (including any change to securities exchangeable into or convertible into any actuarial such securities);
(C) authorize or other assumption used to calculate funding obligations pay any dividends on or make any distributions with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined)securities, except where any such action would reduce Sellers’ costs or Liabilities other than as required pursuant to such plan, its organizational documents in effect as of Execution Date;
(D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees adopt a plan of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization recapitalization or in other reorganization;
(E) make any acquisitions or dispositions of any other mannerperson or business, the legal structure make any loans, advances or ownership of capital contributions to any Key Subsidiaryentity, or adopt incur any indebtedness;
(F) enter into any voting agreement or approve a plan other agreement with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facilityeither Company’s outstanding securities; and
(xviiiG) agree, in writing authorize or otherwise, agree to take any of the actions prohibited by any of the foregoing actionsclauses (A) through (F). Notwithstanding the preceding provisions of this Section 8.1(a), Buyer’s consent shall not be required with respect to any action taken by Seller required by any Contract disclosed on Seller’s Schedules as of the Execution Date, as required by Law or Order, or as specifically contemplated by other provisions of this Agreement.
(b) Buyer shall respond to any request for consent pursuant to Section 8.1(a) within five Days following receipt of such request from Seller (or, if applicable, such shorter time period as may be required under the terms of the relevant Contract and indicated in such notice from Seller; provided that Seller has made such request promptly after becoming aware that consent would be required), and a failure to respond within such time period shall constitute Buyer’s consent to the matter addressed in the applicable notice. Buyer acknowledges that Seller owns undivided interests in certain of the Assets, and Buyer agrees that the acts or omissions of the other working interests owners who are not Affiliates of Seller shall not constitute a breach of the provisions of this Section 8.1, nor shall any action required by a vote of working interest owners constitute such a breach so long as Seller has voted its interest in a manner that complies with the provisions of this Section 8.1. Buyer acknowledges that as to those Oil and Gas Properties that are operated by a Person other than Seller or any Affiliate of Seller, the obligations of Seller in this Section 8.1 shall be construed to require that Seller use its commercially reasonable efforts (without being obligated to incur any expense or institute any cause of action) to cause the operator of such Assets to take such actions or render such performance within the constraints of the applicable operating and other applicable agreements and applicable Law.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (EP Energy LLC), Purchase and Sale Agreement (Atlas Resource Partners, L.P.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after From the date of this Agreement until Closing, Seller shall procure that the Business is carried on, in all material respects, in the ordinary and until usual course, except (i) for the earlier actions, agreements, commitments, payments, transactions or other measures foreseen, permitted or reflected under this Agreement, the Transaction Documents or the Rivoira Share Swap (ii) any measures, actions or omissions to act aimed at, in connection with or relating to the separation of the Target Companies or JVCos from Seller's Group in the context of the Transaction, including, but not limited to, the carve in/carve out steps described in Schedule 11 or the re-allocation or transfer of certain employees between Seller's Group and Target Companies or JVCos (described in the document entitled "Transfer of European Employees" and identified with number 4.5 of the Global/Corporate folder in the Data Room, the "Pre-Closing and the termination Steps") (which shall be completed in such a way as to create no residual liabilities for Target Companies or JVCos, provided that Purchaser’s sole remedy in respect of any residual Tax liabilities created shall be under clause 13 of this Agreement), Sellers shall and shall cause each Purchased Subsidiary to or (Aiii) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent or measure pursuant to requirements or requests of a Governmental Entity in connection with this Agreement obtaining the BCA Clearance Condition or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through SPA Clearance Condition (iv) of Section 6.2(a)any action, each Seller agrees thatmeasure, from and after omission to act, requirement or request by any monitoring trustee (or similar) appointed in connection with obtaining the date of this Agreement and until BCA Clearance Condition or the earlier of SPA Clearance Condition, or (v) for decisions outside the Closing and the termination of this Agreementordinary business course, without with the prior written consent of Purchaser (which in writing by Purchaser, such consent shall not to be unreasonably withheld, conditioned or delayed, and deemed to be granted if Purchaser has not responded to a request from Seller for consent within ten (10) Business Days following the receipt of such request ((i) through (v) the "Permitted Actions"), such it being understood that Seller shall not, and shall not permit any keep Purchaser reasonably informed in relation to the completion of the Key Subsidiaries Pre-Closing Steps.
(and in b) From the case date of clauses (i)this Agreement until Closing, (ix), (xiii) or (xvi), Seller shall not permit any Purchased Subsidiary) tofurther procure that except for Permitted Actions:
(i) take any action the Business shall be run in the ordinary course and in accordance with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under prudent business practice in the UST Credit Facilities, without obtaining the prior approval of such action from Sponsormanner a prudent business operator with sufficient resources would do so;
(ii) issueexcept for any dividends or distributions provided for in the Combined Carve Out Financial Statements, sellno Target Company declares, pledge, create an Encumbrance pays or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of makes any Equity Interests of the Transferred Entities, or grant any options, warrants dividend or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interestsdistribution;
(iii) declareno Target Company repays, set aside repurchases or pay reduces any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiariesits issued share capital;
(iv) directly no share or indirectly, purchase, redeem loan capital is being issued or otherwise acquire any Equity Interests or any rights agreed to acquire any Equity Interests of any Seller or Key Subsidiarybe issued by a Target Company;
(v) materially there is no change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing articles of the Bankruptcy Casesassociation of a Target Company;
(vi) adopt there is no merger, spin-off, change of legal form or similar measures involving or otherwise directly affecting any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereofTarget Company;
(vii) sell, pledge, lease, transfer, assign or dispose of no Target Company creates any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, Third Party Rights over share capital held by it (other than a Permitted Encumbrance, in each case, except in for the Ordinary Course benefit of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2another Target Company);
(viii) no Target Company sells or purchases or disposes of (Aother than to another Target Company) incur any interest in any share or assume any Indebtedness for borrowed money loan capital or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines other security or interest in a company or business with a value in excess of credit two million (including through the incurrence of Intercompany Obligations2,000,000) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the SubsidiariesEUR;
(ix) discharge all agreements between a Target Company or satisfy any Indebtedness in excess Controlled JVCo and members of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled Seller's Group take place on arm's length terms;
(x) other than in relation to an onsite plant or participation in a tender in relation to an onsite plant, no Target Company enters into or terminates any contract or incurs any commitment (either as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement single transaction or of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors series of Sellers or Seller Key Personnelconnected transactions), including without limitation any borrowing or indebtedness in the nature of borrowing, which has a value or is likely to involve expenditure in excess of ten million (C10,000,000) establish, adopt, enter into, amend EUR per annum (excluding VAT) which cannot be terminated or terminate any Benefit Plan performed within its terms within one (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to 1) year after the manner in which contributions to any Benefit Plan are made or the basis date on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment it is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Planentered into;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract no Target Company enters into a contract in respect of a new on-site plant where such contract is likely to involve capital expenditures in excess of ten million (except for any dealer sales and service Contracts or as contemplated by Section 6.710,000,000) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of BusinessEUR;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7no Target Company participates in a tender for an onsite plant which is likely to involve capital expenditure in excess of thirty million (30,000,000) EUR except where Purchaser has been allowed to review and provide comments on such tender in advance of its submission;
(xiii) acquire (no Target Company enters into any guarantee, indemnity or other agreement to secure any obligation of a third party, including by merger, consolidation, combination or acquisition any member of Equity Interests or assets) any Person or business or division thereof Seller's Group (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000another Target Company);
(xiv) alter, whether through no Target Company (i) institutes or settles any litigation where that action is likely to result in a complete payment to or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization by a Target Company of two million (2,000,000) EUR or more (except for collection in any other manner, the legal structure or ownership ordinary course of any Key Subsidiary, or adopt or approve a plan with respect to any trading debts) (ii) settles an insurance claim in excess of two million (2,000,000) EUR materially below the foregoingamount claimed;
(xv) enter into in connection with the Properties, no Target Company (i) terminates or serves any Contract that limits notice to terminate, surrenders or otherwise restricts accepts any surrender of any lease, tenancy or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto licence; or (Bii) enters into or prolongs the term of any Affiliates of Purchaser lease, tenancy or any successor theretolicence by more than twelve (12) months, in each case which is material for the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic areaBusiness;
(xvi) enter no Target Company enters into or modifies materially any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection agreement with any single project Key Employee, including any off-cycle increase or group amendment of related projectssalaries, benefits, bonus payment or other remuneration and on-cycle increases of more than 3% per annum as well as the termination of employment by termination notice or termination agreement;
(xvii) open no Target Company: (x) assigns or reopen otherwise transfers any major production facilityBusiness Intellectual Property; or (y) except as required by applicable law or in accordance with the ordinary course of business, grants, modifies, agrees to terminate or permit the lapse of, or enters into any licence, agreement or arrangement concerning any Business Intellectual Property;
(xviii) no Target Company other than in the ordinary course of business makes any change to its accounting practices or policies, except as required by applicable law or applicable generally accepted accounting principles; and
(xviiixix) agreeno Target Company or Controlled JVCo changes its place of Tax residence.
(c) For the purposes of applying a reference to a monetary threshold expressed in EUR with respect to clause 16.1, an amount in writing or otherwise, a different currency shall be deemed to take any of be an amount in EUR translated at the foregoing actionsExchange Rate at the relevant date on which the respective action is taken.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (Praxair Inc), Sale and Purchase Agreement (Linde PLC)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including During the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and until to the earlier of the Closing and the termination of Closing, except (i) as expressly permitted by this Agreement, Sellers (ii) as Purchaser shall and shall cause each Purchased Subsidiary otherwise consent in writing in advance (such consent not to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), (iii) as required by applicable Law, (iv) as set forth on Section 6.4(a) of the Company Disclosure Schedule, the Seller agrees that it will, and will cause each other member of the Seller Group and each member of the Alkali Group to, conduct the Business in all material respects in the ordinary course consistent with past practice and use commercially reasonable efforts to preserve intact the Business’s and the Alkali Group’s organizations and goodwill, keep available the services of the Alkali Group’s senior officers, and preserve the business relationships with material customers and others having material business relationships with the Alkali Group; provided, however, that no action by the Seller, the Company or other members of the Seller Group or the Alkali Group with respect to matters specifically addressed by any provision of Section 6.4(b) shall be deemed a breach of this Section 6.4(a) unless such action would constitute a breach of such provision of Section 6.4(b).
(b) During the period from the date of this Agreement to the Closing, except (i) as expressly permitted or contemplated by this Agreement (including Section 6.20), (ii) as Purchaser shall otherwise consent in writing in advance (such consent not to be unreasonably withheld, conditioned or delayed), (iii) as required by applicable Law, (iv) as required by, pursuant to or in connection with the Credit Facilities to the extent disclosed on Section 6.4(a) of the Company Disclosure Schedule or (v) as otherwise set forth on Section 6.4(a) of the Company Disclosure Schedule, Seller and the Company covenant and agree that it shall not, and it shall cause each other member of the Seller Group and each member of the Alkali Group not permit to take any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tofollowing actions:
(i) take any action with respect (A) amend or propose to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval amend their respective certificates of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance incorporation or otherwise dispose of by-laws or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests equivalent organizational documents of the Transferred EntitiesAlkali Group in any manner adverse to Purchaser, (B) split, combine or grant reclassify any options, warrants outstanding capital stock or other rights to purchase or obtain equity interests in any member of the Alkali Group, (including upon conversion, exchange or exercise) any such Equity Interests;
(iiiC) declare, set aside or pay from any member of the Alkali Group to any Person other than another member of the Alkali Group any (x) non-cash dividend or make any non-cash distribution or (whether y) cash distribution or cash dividend, unless, in cash, securities or other property or by allocation the case of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary(y), except for dividends and distributions among such cash distribution or dividend is paid prior to the Purchased Subsidiaries;
Valuation Time, or (ivD) directly or indirectly, purchase, redeem or otherwise acquire acquire, directly or indirectly, any Equity Interests Shares or any rights to acquire any Equity Interests other shares of the capital stock or other equity interests or securities of any Seller or Key Subsidiarymember of the Alkali Group;
(vii) materially change with respect to any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result member of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a splitAlkali Group, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) issue, sell, pledge, leasetransfer, encumber, assign, convey, surrender, relinquish or otherwise dispose of, or agree to issue, sell, pledge, transfer, assign encumber, assign, convey, surrender, relinquish or otherwise dispose of, any additional shares of, or any options, warrants or rights of any Purchased Asset kind to acquire any shares of their capital stock of any class or permit any Purchased Asset debt or equity securities (including those which are convertible into or exchangeable for such capital stock);
(iii) (A) incur any Indebtedness at or after the Valuation Time, or before the Valuation Time in excess of $5,000,000, except before the Valuation Time and (1) to become subject the extent that such Indebtedness will be settled or otherwise eliminated prior to any Encumbrancethe Closing and (x) disclosed on Section 6.4(b)(iii)(A) of the Company Disclosure Schedule or (y) which Purchaser has been notified of in writing at least five (5) Business Days before the Valuation Time, (2) to replace or refinance existing Credit Facilities or other than Indebtedness and (x) disclosed on Section 6.4(b)(iii)(A) of the Company Disclosure Schedule or (y) which Purchaser has been notified of in writing at least five (5) Business Days before the Valuation Time, and (3) as a Permitted Encumbrancedraw on existing revolving credit facilities, so long as, in each case, except in any additional Indebtedness permits the Ordinary Course transactions contemplated by this Agreement and provides for the termination of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among (solely to the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of extent constituting a Parent Employee Benefit Plan and Policy (in effect Lien on the date hereof Shares) and set forth the Alkali Group under such Indebtedness and releases Liens on Section 4.10 the Shares and the assets and properties of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit PlanAlkali Group related thereto at Closing;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Genesis Energy Lp), Stock Purchase Agreement (Tronox LTD)
Conduct of Business. (a) Except as To the extent this Section 5.2 does not conflict with the Injunction, during the Interim Period: (i) otherwise expressly contemplated by Seller will use commercially reasonable efforts to operate and maintain, or permitted under this Agreementcause any applicable third party operator to operate and maintain, including the DIP FacilityAssets, consistent with past practices; (ii) disclosed on Section 6.2 Seller will not undertake any individual capital expenditures or any contractual commitment with respect to the Assets without the approval of the Sellers’ Disclosure ScheduleBuyer; and (iii) approved by Seller agrees that it shall, for those Assets which it operates, and, with respect to those Assets that Seller does not operate, it shall use its commercially reasonable efforts to cause the Bankruptcy Court operator of those Assets to:
(or any other court or other Governmental Authority a) administer and operate the Assets in connection accordance with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier material provisions of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.operating agreements;
(b) Subject not introduce any new methods of management, operation or accounting with respect to any or all of the Assets, except as may be required by any Governmental Authority or by generally accepted accounting principles;
(c) use commercially reasonable efforts to maintain and keep the Assets in full force and effect; and fulfill all material contractual or other covenants, obligations and conditions imposed upon Seller with respect to the exceptions contained Assets, including, but not limited to, payment of royalties, delay rentals, shut-in clauses gas royalties and any and all other required payments;
(id) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier not voluntarily relinquish its position as operator to anyone other than Buyer with respect to any of the Closing and Assets or voluntarily abandon any of the termination Xxxxx other than as required pursuant to the terms of this Agreement, a Lease or by Law;
(e) not without the prior written consent of Purchaser Buyer (which consent shall not be unreasonably withheldexercised in Buyer’s sole discretion) (i) enter into any agreement or arrangement transferring, conditioned selling or delayed), such Seller shall not, and shall not permit encumbering any of the Key Subsidiaries Assets (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course ordinary course of Business;
sales of production); (xiiii) grant any preferential or other right to purchase or agree to require the consent of any party not otherwise required to consent to the transfer and assignment of the Assets to Buyer; (iii) enter into any Seller Material Contract other than as contemplated by Section 6.7new sales contracts or supply contracts; or (iv) incur or agree to incur any contractual obligation or liability (absolute or contingent) with respect to the Assets;
(xiiif) acquire to the extent known to Seller, provide Buyer with prompt written notice of (including by merger, consolidation, combination or acquisition of Equity Interests or assetsi) any Person claims, demands, suits or business or division thereof actions made against Seller which materially affect the Assets; (other than acquisitions of portfolio assets and acquisitions ii) any proposal from a third party to engage in the Ordinary Course of Business) in a any material transaction (e.g., a farmout agreement) with respect to the operation of the Assets; or series of related transactions(iii) where the aggregate consideration paid any Assets which have been damaged or received (including non-cash equity consideration) exceeds $100,000,000destroyed by fire or other casualty;
(xivg) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, maintain the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of current insurance covering the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Assets until Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviiih) agreeprovide prompt notice to Buyer of any notice received by Seller of a default, in writing claim, obligation or otherwise, to take suit that directly impacts any of the foregoing actionsAssets.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Magnum Hunter Resources Corp)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) as required by Law or as may be approved by Buyer, during the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes the Execution Date to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and Date or the termination of this AgreementAgreement in accordance with Article 8, Sellers Seller shall operate the Projects and shall cause maintain the Purchased Assets, in each Purchased Subsidiary to (A) conduct their operations case in the Ordinary Course ordinary course of Businessbusiness, (B) not take any action inconsistent consistent with this Agreement or Prudent Utility Practice, in accordance with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business Laws and in all material respects the present relationships of Sellers Seller’s Permits and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall notEnvironmental Permits, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tonot:
(i1) take sell or transfer any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under spare parts or inventory comprising a part of the UST Credit FacilitiesPurchased Assets, without obtaining the prior approval of such action from SponsorBuyer’s consent;
(ii2) issueamend, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amendcancel, terminate or waive any rights under or grant any Affiliate Contract consent relating to any Permits or Seller Material Contract (except for any dealer sales and service Contracts Environmental Permits or as contemplated by Section 6.7) in any material manner with respect to the Assumed Agreements, except in a manner each case as specifically provided in this Agreement, or enter into any material contract that is adverse extends beyond the Closing Date relating to any Seller that is a party thereto, other than in the Ordinary Course of BusinessPurchased Assets or the Projects;
(xii3) enter into incur any Seller Material Contract other than as contemplated by Section 6.7material obligations or liabilities not in existence on the Execution Date that will become an Assumed Obligation or otherwise become the obligation of Buyer in connection with the acquisition of the Projects or the Purchased Assets;
(xiii4) acquire permit, allow, or suffer any Purchased Asset to be subjected to any Encumbrances other than Permitted Encumbrances or Encumbrances that will otherwise be discharged prior to or at the time of the Closing; or
(including by merger5) grant, consolidation, combination issue or acquisition of Equity Interests or assets) give any Person any rights or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan options with respect to any of the foregoing;
(xv) enter into any Contract that limits Projects or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsPurchased Assets.
Appears in 2 contracts
Samples: Asset Sale Agreement, Asset Sale Agreement (NewPage CORP)
Conduct of Business. Except (a) Except as (i) otherwise expressly permitted or contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses as otherwise required by Law or (ic) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreementas set forth on Schedule 6.1, without the prior written consent of Purchaser the GP (which consent shall will not be unreasonably withheld, conditioned delayed or delayedconditioned), such Seller each of the Contributing Parties agrees that from the Execution Date through the Closing Date or earlier termination of this Agreement in accordance with Article X:
(a) Each of the Contributing Parties, with respect to the Business, shall not(i) conduct or cause to be conducted the Business in the ordinary course and (ii) use or cause to be used commercially reasonable efforts to preserve intact the present business organizations and material rights and franchises of the Business and to preserve the material relationships of the Business with operators, producers and shall others having business dealings with the Business.
(b) Without limiting the generality of Section 6.1(a), each of the Contributing Parties agrees that it will not and will not permit any of their Affiliates (including the Key Subsidiaries (and in Contributed Entities or any of their respective Affiliates with respect to the case of clauses (iEquity Contributors), (ix)directly or indirectly, (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take make any action with respect to which any Seller has granted approval rights to Sponsor under any Contractchange in the Governing Documents of the Contributed Entities or the Asset Contributors, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorexcept as set forth on Schedule 6.1(b)(i);
(ii) issue, deliver, transfer, sell, pledge, create an Encumbrance or otherwise dispose of or abandon or authorize or propose the issuance, delivery, transfer, sale, pledgedisposal or abandonment of, Encumbrance or disposition of any Equity Interests of the Transferred (A) Contributed Assets, (B) Equity Owned Assets or (C) Contributed Entities’ equity securities or securities convertible into the Contributed Entities’ equity securities, or grant any optionssubscriptions, rights, warrants or options to acquire or other rights agreements or commitments of any character obligating it to purchase or obtain (including upon conversion, exchange or exercise) issue any such Equity Interestssecurities;
(iii) create any right of first offer, right of first refusal or similar preferential right, mortgage, pledge, encumber or permit to suffer any Lien on (other than Permitted Liens in the ordinary course of business), any of the (A) Contributed Assets, (B) Equity Owned Assets or (C) Contributed Entities’ equity securities or securities convertible into the Contributed Entities’ equity securities, or subscriptions, rights, warrants or options to acquire or other agreements or commitments of any character obligating it to issue any such securities;
(iv) with respect to the Contributed Entities, except with respect to the distribution of payments dated prior to the Effective Date for receipts, revenues, interest or income related to the Oil and Gas Properties or any distribution related to the Distributed Interests, declare, set aside or pay any dividend distributions in respect of the Contributed Entities’ equity securities, or make split, combine or reclassify any distribution (whether in cash, of the Contributed Entities’ equity securities or issue or authorize the issuance of any other property securities in respect of, in lieu of or by allocation in substitution for any of additional Indebtedness to any Seller the Contributed Entities’ equity securities, or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire acquire, directly or indirectly, any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiarythe Contributed Entities’ equity securities;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAPexclusions under other clauses of this Section 6.1(b), other than in the ordinary course of business, enter into any material contract or agreement or terminate or amend in any material respect any material contract or agreement to which it is a SEC rule, regulation party or policy waive any material rights under any material contract or applicable Law, or as modified by Parent as agreement to which it is a result of the filing of the Bankruptcy Casesparty;
(vi) adopt incur, assume or guarantee any amendments indebtedness for borrowed money, issue, assume or guarantee any debt securities, grant any option, warrant or right to its Organizational Documents purchase any debt securities, or permit issue any securities convertible into or exchangeable for any debt securities, except working capital borrowings in the adoption ordinary course of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereofbusiness;
(vii) sellmake any change to its Tax methods, pledge, lease, transfer, assign principles or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2)elections;
(viii) (A) incur or assume make any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) change to fund operations of Purchased Subsidiaries its financial reporting and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiariesaccounting methods;
(ix) discharge adopt or satisfy any Indebtedness in excess vote to adopt a plan of $100,000,000 other than the discharge complete or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;partial dissolution or liquidation; or
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement agree or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed commit to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to do any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Contribution, Conveyance, Assignment and Assumption Agreement (Kimbell Royalty Partners, LP), Contribution, Conveyance, Assignment and Assumption Agreement (Kimbell Royalty Partners, LP)
Conduct of Business. 4.1. Subject to clause 4.2, from the date of this Agreement until Completion, the Seller shall through the use of its powers and rights as a shareholder of the Company: (i) not consent to or vote in favour of any matter which would result in the Group not complying with the matters in this clause 4.1 and (ii) forthwith upon the execution of this Agreement by the parties formally direct (and a copy of the direction shall be forthwith provided to the Purchaser) in writing (such direction being in the Agreed Form) the board of directors of each Group Company to ensure that (save with the prior written consent of the Purchaser, such consent not to be unreasonably withheld or delayed):
4.1.1. the business of the Group is carried on in the ordinary course; and
4.1.2. without limiting the generality of sub-clause 4.1.1., no Group Company will undertake any of the matters set out in Schedule 2A.
4.2. Clause 4.1 shall not operate so as to restrict or prevent the taking of any Permitted Actions or any action:
4.2.1. in an emergency or other extraordinary situation with the intention of minimising, preventing or remedying any adverse effect on any Group Company, provided that the Seller notifies the Purchaser in advance of the situation, the reasonably anticipated effects (including the reasonably anticipated financial effects) of the situation on the Group and its business and operation and the proposed action to be taken (it being acknowledged by the Purchaser that it may not be practicable for the Seller to provide detailed information in all circumstances if the time or actions required to do so could prejudice the Group’s ability to minimise, prevent or remedy the emergency or other extraordinary situation);
4.2.2. in order to comply with a requirement of applicable law or regulation;
4.2.3. provided for in the Transaction Documents;
4.2.4. to discharge a binding obligation undertaken pursuant to any contract or arrangement entered into by any Group Company either (a) Except prior to the date of this Agreement in the ordinary course of business or trading, provided that details of such contract or arrangement have been Disclosed (as (i) otherwise expressly contemplated by or permitted under this Agreement, including defined in the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of ParentWarranty Deed); or (ivb) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations provided that such contract or arrangement was entered into in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement ordinary course or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled termsclause 4.1;
4.2.5. undertaken or omitted at the written request of the Purchaser (xalthough neither the Seller nor any Group Company shall be obliged to comply with any such request).
4.3. The Seller shall forthwith upon the execution of this Agreement by the parties formally direct (and a copy of the direction shall be forthwith provided to the Purchaser) other than (such direction being in the Agreed Form) the CEO and the CFO of the Group to meet with the Purchaser and the Purchaser shall meet with the CEO and the CFO of the Group on a weekly basis (or more frequently as is required reasonably requested by the terms of a Parent Employee Benefit Plan and Policy (in effect on Purchaser) to discuss any actions which might require the date hereof and set forth on Section 4.10 consent of the Sellers’ Disclosure Schedule), Purchaser pursuant to clause 4.1 and the Purchaser agrees to discuss in good faith and in a collaborative manner any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent such matters with the expiration of a Collective Bargaining Agreement, CEO and the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsCFO.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Gallagher Arthur J & Co)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after 4.1 From the date of this Agreement and until the earlier of Completion, the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) Group will conduct their operations its business in the Ordinary Course of Business, (B) not take any action inconsistent ordinary course and except with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall Subscriber, the Group will not be unreasonably withheld, conditioned do or delayed), such Seller shall not, and shall not permit agree to do any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:following:
(ia) take enter into, modify or terminate any action with respect to which contract having a contract value of HK$10,000,000 or more or any Seller has granted approval rights to Sponsor under contract affecting a material part of its business or entering into any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorunusual or onerous contract;
(iib) create any Encumbrance on any of its assets having an aggregate value of HK$10,000,000 or more, whether in a single or a series of transactions;
(c) borrow money or incur any indebtedness having an aggregate value of HK$10,000,000 (including granting any guarantee in respect of any such borrowing or indebtedness;
(d) discontinue or cease to operate any material part of its business;
(e) create, issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, redeem or grant any options, warrants option or right to subscribe in respect of any share or loan capital or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interestssecurities;
(iiif) declare, set aside amend its memorandum or articles of association;
(g) declare or pay any dividend or make any distribution distribution;
(whether h) engage in cashinvestment, securities development, acquisition, management, operation or other property sale of commercial or by allocation of additional Indebtedness to residential real estate; and
(i) authorize, approve or enter into any Seller agreement or any Key Subsidiary without receipt of fair value obligation with respect to any Equity Interest action listed above.
4.2 Nothing in paragraph 4.1 of Seller this Schedule shall operate to prevent or restrict the Group or any Key Subsidiary), except for dividends and distributions among member of the Purchased Subsidiaries;Group from:
(iva) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except carrying on business in the Ordinary Course of Business or pursuant ordinary and usual course as carried on prior to a Contract in existence as of the date hereof of this Agreement (or entered into for the avoidance of doubt, the activities specifically enumerated in compliance with paragraph 4.1 of this Section 6.2Schedule shall not be deemed as “ordinary and usual course” for purpose of this clause);
(viiib) taking any action in relation to any matter of which written notice has been given to the Subscriber and in relation to which the Subscriber has not responded to requesting member of the Group in writing within five (A5) incur or assume Business Days of the date on which such written notice was sent;
(c) taking any Indebtedness for borrowed money or issue action in relation to any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit matter required to give effect to and to comply with this Agreement;
(including through the incurrence of Intercompany Obligationsd) taking actions required to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or be undertaken to comply with any obligations (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently mandatory or otherwise) for the obligations of any member of the Group or their respective directors and officers pursuant to applicable laws or fiduciary, director or other Personduties, except for Indebtedness for borrowed money among any Seller policies and Subsidiary or among the Subsidiariesprocedures;
(ixe) discharge or satisfy any Indebtedness matters in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required relation to projects, investment and capital expenditure plans that have been approved by the terms Board prior to the signing of a Parent Employee Benefit Plan and Policy this Agreement (in effect on to the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on extent such matters have been notified with Subscriber prior to the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviiif) agree, in writing or otherwise, to take taking any action at the written request of the foregoing actionsSubscriber.
Appears in 2 contracts
Samples: Subscription Agreement, Subscription Agreement
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from From and after the date of this Agreement and until the earlier First Stage Closing Date, except as set forth on Schedule 5.2 or as otherwise contemplated by this Agreement or the Schedules and Exhibits hereto or as Buyers shall otherwise consent to in writing, in each case to the extent related to the Business, Sellers:
(a) will incur and pay costs and otherwise operate the Business only in the ordinary course and in a manner consistent with past practice, and shall use their commercially reasonable efforts to (i) preserve intact the present business organization and the Business Employees, (ii) preserve the goodwill and advantageous relationships of the Closing Business with customers, suppliers, independent contractors and other Persons material to the termination operation of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (Biii) prevent any event that could have a Material Adverse Effect and (iv) not take permit any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to omission that would cause any of Sellers’ the representations and or warranties set forth in ARTICLE IV of Sellers contained herein to become inaccurate or any of the covenants of Sellers to be untrue breached, in either case in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closingrespect.
(b) Subject to without limiting the exceptions contained in clauses generality of clause (i) through (iv) of Section 6.2(aa), each Seller agrees that, from and after the date of this Agreement and until the earlier of the First Stage Closing and the termination of this AgreementDate, without except as set forth on Schedule 5.2 or with the prior written consent of Purchaser (which consent shall not be unreasonably withheldBuyers, conditioned or delayed), such Seller shall Sellers will not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take do any action with respect act or omit to do any act, or permit any act or omission to act, which would cause a material breach of any Seller has granted approval rights of the Purchased Contracts, Purchased Permits and Transferred Communications Licenses or any liabilities or obligations contemplated by this Agreement or any of the Collateral Agreements to Sponsor under any Contractbe an Assumed Liability, including under the UST Credit Facilities, without obtaining the prior approval breach of such action from Sponsorwhich is reasonably likely to have a Material Adverse Effect;
(ii) issue, sell, pledgetransfer, create an Encumbrance convey, assign or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred EntitiesAcquired Assets with a fair market value in excess of $100,000 (without purchasing a replacement of the same or better quality and condition) other than for goods or inventory, including parts or grant any optionssupplies, warrants sold or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interestsotherwise disposed of in the ordinary course of business and consistent with past practice;
(iii) declareexcept for capital improvements, set aside or pay any dividend or make any distribution purchases and expenditures permitted by clause (whether in cashiv), securities purchase, lease or other property or by allocation acquisition of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary)Acquired Assets, except for dividends any such transaction less than $50,000 individually in value or $250,000 in the aggregate in value, except for circuits and distributions among services acquired in the Purchased Subsidiariesordinary course of business and consistent with past practice for the purpose of supporting ongoing sales activities;
(iv) directly authorize or indirectly, purchase, redeem make any capital improvements or otherwise acquire any Equity Interests purchases or any rights to acquire any Equity Interests other capital expenditures that individually or in the aggregate are in excess of any Seller or Key Subsidiarythose contemplated by Section 5.15(c);
(v) materially change other than in the ordinary course of business and consistent with past practice, waive, release or cancel any of its financial accounting policies claims against third parties or procedures debts owing to it, or any rights which have a value of its methods of reporting income$200,000 individually or $500,000 in the aggregate, deductions other than any claims against or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Casesdebts owing from Affiliates;
(viA) adopt make any amendments to its Organizational Documents or permit the adoption of borrowing, incur any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
debt (vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbranceordinary course borrowings under the Credit Agreement or from Sellers' Parent, in each case, except and trade payables in the Ordinary Course ordinary course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance business and consistent with this Section 6.2past practice);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or ; (B) assume, guarantee, endorse (except for the negotiation or collection of negotiable instruments in the ordinary course of business and consistent with past practice and the guarantee of lease obligations of Broadwing Communications Real Estate Services LLC where any such guarantee is not an Assumed Liability) or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person; or (C) make any payment or repayment in respect of any indebtedness (other than (i) trade payables and accrued expenses in the ordinary course of business and consistent with past practice or (ii) except as provided for in the Credit Agreement, repayments or prepayments of Debt (as defined in the Credit Agreement) owed to Sellers' Parent or any of its Subsidiaries (as defined in the Credit Agreement)); in each case in excess of $25,000 individually or $100,000 in the aggregate;
(vii) grant or permit the creation of any Encumbrance over any of the Acquired Assets, other than Permitted Encumbrances (except for Indebtedness for borrowed money among items (iv) and (v) included in the definition of Permitted Encumbrances with respect to any Acquired Assets owned by any Seller on the date hereof). Until such time as the Required Lenders under the Credit Agreement shall have consented to the first sentence of this clause (vii) (or otherwise amended or waived the provisions of Section 5.02(l) of the Credit Agreement) or the Credit Agreement shall be terminated, this clause (vii) shall be subject to (x) the restrictions on, and Subsidiary (y) the exceptions to the restrictions on, the creation of Encumbrances set forth in Section 5.02(l) of the Credit Agreement
(viii) make any loan, advance or among capital contribution (other than to any of the Subsidiariesother Sellers) to, or investment in, any other Person in excess of $10,000 individually or $25,000 in the aggregate;
(ix) discharge enter into, adopt, amend or satisfy terminate any Indebtedness bonus, profit sharing, compensation, termination, stock appreciation right, restricted stock, performance unit, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer, consultant (except with respect to termination of any consultants) or employee, or increase in any manner the compensation or fringe benefits of any director, officer, consultant or employee or pay any benefit not required by any existing plan and arrangement or enter into any Contract to do any of the foregoing, which, in each case, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect;
(A) terminate the employment of any Key Employee without cause; or (B) terminate the employment of any other Business Employees without cause (which termination contemplated by this clause (B), individually, or in the aggregate, is reasonably likely to have a Material Adverse Effect);
(xi) pay any amount, perform any obligation or agree to pay any amount or perform any obligation, in settlement or compromise of any suits or claims of liability against any Seller or any of its directors, officers, employees or agents which would be an Assumed Liability or, in each case in excess of $100,000,000 other than 200,000 individually or $1,000,000 in the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled termsaggregate;
(xxii) other than as is required by in the terms normal course of a Parent Employee Benefit Plan business and Policy (in effect on the date hereof and set forth on Section 4.10 consistent with past practice, terminate, rescind, modify, amend or otherwise alter or change any of the Sellers’ Disclosure Schedule)material terms or provisions of any of the Purchased Contracts, Purchased Permits or Transferred Communications Licenses, or reduce, discount, waive or forego any Assumed Plan material payment or right thereunder, or agree to any compromise or settlement with respect thereto, in each case in excess of $100,000 individually or $500,000 in the aggregate;
(in effect on the date hereofxiii) the UAW Collective Bargaining enter into any Employment Agreement or other Contract of any kind with any director, officer or employee of any Seller or any of the respective Affiliates of such individuals, or with any Affiliate of any Seller, which, in each case, is related to the Business or would be an Assumed Liability;
(xiv) enter into any Contract pursuant to which any Seller grants or is granted any license or sublicense or other right to use any of the Acquired Assets;
(xv) other than in the ordinary course of business and consistent with the expiration of a Collective Bargaining Agreementpast practice, the Settlement Agreement, the UAW Retiree Settlement Agreement incur any obligation or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate modify any Benefit Plan Contract or arrangement, which is related to the Business or would be an Assumed Liability, that either (including i) requires a payment by any change to any actuarial party in excess of, or other assumption used to calculate funding obligations with respect to any Benefit Plan a series of payments which in the aggregate exceed, $500,000 or provides for the delivery of goods or performance of services, or any change to combination thereof, having a value in excess of $500,000 and (ii) has a term, or requires the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement performance of any pending Claim or charge involving obligations by Seller over a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor theretoperiod, in the case excess of each of clause one (A1) or (B), from engaging or competing in any line of business or in any geographic areayear;
(xvi) enter into any Contracts for capital expendituresmaterial Contract with a sales representative, exceeding $100,000,000 sales agency, advertising agency or other Person engaged in sales, distributing or promotional activities, or any material Contract to act as one of the aggregate in connection with foregoing on behalf of any single project or group of related projectsPerson;
(xvii) open enter into any Contract with respect to any material modification or reopen termination of any major production facilityReal Property Lease; andor
(xviii) agree, in writing or otherwise, enter into any Contract to take do any of the foregoing actionsforegoing.
(c) without limiting the generality of clause (a), until the First Stage Closing Date, except as set forth on Schedule 5.2, each Seller shall use their commercially reasonable efforts to:
(i) maintain all Communications Licenses and Permits that are required for and material to the conduct of the Business as currently conducted and for the holding of the Acquired Assets.
(ii) maintain their books, accounts and records in the usual, regular and ordinary manner, and on a basis consistent with the Financial Statements and past practices, and
(iii) duly comply in all material respects with all Laws and Orders applicable to Sellers or as may be required for the valid and effective transfer and assignment of the Acquired Assets.
(d) Sellers shall continue to carry their existing "occurrence" liability insurance applicable to periods up to the Second Staged Closing Date and shall not allow any breach, default, termination or cancellation of such insurance policies or agreements to occur or exist. Any Contract or other obligation which is related to the Business and would be an Assumed Liability which requires the prior written consent of Buyers pursuant to Section 5.2(b) and which is entered into or incurred with the prior written consent of Buyers shall be included in the Acquired Assets and shall constitute an Assumed Liability, and the Schedules to this Agreement shall be deemed to have been updated to include any such Contract or obligation. Any Contract or other obligation entered into or incurred in violation of Section 5.2(b) shall not be included in the Acquired Assets, shall constitute an Excluded Liability, and shall not be included on any of the Schedules to this Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Corvis Corp), Purchase and Sale Agreement (Broadwing Inc)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including During the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses except (i) through pursuant to the Pre-Closing Reorganization, (ivii) of as expressly permitted by this Agreement (including Section 6.2(a5.7), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written (iii) as Purchaser shall otherwise consent of Purchaser in writing in advance (which such consent shall not to be unreasonably withheld, conditioned or delayed), (iv) as required by applicable Law or (v) as set forth on Section 5.4(a) of the Seller Disclosure Schedule, Seller agrees that it will, and will cause each member of the Alkali Group (in each case, in respect of the Business) to, conduct the Business in all material respects in the ordinary course consistent with past practice and use commercially reasonable efforts to preserve intact the Business’s and its organizations and goodwill, keep available the services of the Business’s senior officers, and preserve the Business’s business relationships with material customers and others having material business relationships with the Business; provided, however, that no action by Seller or the members of the Alkali Group with respect to matters specifically addressed by any provision of Section 5.4(b) shall be deemed a breach of this Section 5.4(a) unless such action would constitute a breach of such provision of Section 5.4(b).
(b) During the period from the date of this Agreement to the Closing, except (i) pursuant to the Pre-Closing Reorganization, (ii) as expressly permitted or contemplated by this Agreement (including Sections 5.7 and 5.22), (iii) as Purchaser shall otherwise consent in writing in advance (such consent not to be unreasonably withheld, conditioned or delayed), (iv) as required by applicable Law or (v) as set forth on Section 5.4(a) of the Seller Disclosure Schedule, Seller covenants and agrees that it shall not, and it shall cause the members of the Seller Group and the Alkali Group not permit to, solely with respect to the Business, the Transferred Assets and the Assumed Liabilities, take any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tofollowing actions:
(i) take (A) amend or propose to amend their respective certificates of incorporation or by-laws or equivalent organizational documents in any action with respect manner adverse to which Purchaser, (B) split, combine or reclassify any Seller has granted approval rights to Sponsor under outstanding capital stock or other equity interests in any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests member of the Transferred EntitiesAlkali Group, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iiiC) declare, set aside or pay any non-cash dividend or make non-cash distribution from any distribution (whether in cash, securities or other property or by allocation member of additional Indebtedness the Alkali Group to any Seller Person other than another member of the Alkali Group (except as may facilitate the elimination of intercompany accounts or any Key Subsidiary without receipt the removal of fair value with respect to any Equity Interest of Seller cash and cash equivalents as contemplated by Section 5.7) or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(ivD) directly or indirectly, purchase, redeem or otherwise acquire acquire, directly or indirectly, any Equity Interests Shares or any rights to acquire any Equity Interests other shares of the capital stock or other equity interests or securities of any Seller or Key Subsidiarymember of the Alkali Group;
(vii) materially change with respect to any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result member of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a splitAlkali Group only, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) issue, sell, pledge, leasetransfer, encumber, assign, convey, surrender, relinquish or otherwise dispose of, or agree to issue, sell, pledge, transfer, assign encumber, assign, convey, surrender, relinquish or otherwise dispose of, any additional shares of, or any options, warrants or rights of any Purchased Asset kind to acquire any shares of their capital stock of any class or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business debt or pursuant to a Contract in existence as of the date hereof equity securities (including those which are convertible into or entered into in compliance with this Section 6.2exchangeable for such capital stock);
(viiiiii) (A) with respect to any member of the Alkali Group only, incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule)5,000,000, any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which extent that such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits Indebtedness will be settled or otherwise restricts or that would reasonably be expected to, after eliminated prior to the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.or
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Tronox LTD), Stock and Asset Purchase Agreement (FMC Corp)
Conduct of Business. (a) Except as (i) otherwise expressly as contemplated by or permitted under this Agreementby the Transaction Documents, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; as required by applicable Law (including for this purpose any COVID-19 Measures), (iii) approved by as set forth on Section 6.1 of the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); Company Disclosure Letter or (iv) required as consented to by SPAC in writing (which consent shall not be unreasonably conditioned, withheld, delayed or resulting from any changes denied, except with respect to applicable Lawsmatters set forth in Sections 6.1(2)(a) and 6.1(2)(f)), from and after the date of this Agreement and until through the earlier of the Acquisition Closing or valid termination of this Agreement pursuant to Article X (the “Interim Period”), the Company (1) shall use commercially reasonable efforts to operate the business of the Company and the termination Material Subsidiaries in all material respects in the Ordinary Course and (2) shall not, and shall not permit its Material Subsidiaries to:
(a) (i) amend its memorandum and articles of association or other organizational documents (whether by merger, consolidation, amalgamation or otherwise); or (ii) propose or adopt a plan of complete or partial liquidation or dissolution, consolidation, restructuring, recapitalization or other reorganization; provided that a Material Subsidiary shall be permitted to take any action set forth in the immediately foregoing clauses (i) and (ii) so long as it does not result individually or in the aggregate in a Company Material Adverse Effect;
(b) incur, assume, guarantee or repurchase or otherwise become liable for any indebtedness for borrowed money, issue or sell any debt securities or options, warrants or other rights to acquire debt securities, in a principal amount exceeding $325,000,000, except for borrowings under credit agreements disclosed in Section 6.1 of the Company Disclosure Letter, in the form that exists on the date hereof, except for amendments thereto that are immaterial, beneficial to the Company or otherwise required in order to consummate the Transactions;
(c) transfer, issue, sell, grant, pledge or otherwise dispose of (i) any of its Equity Securities, or (ii) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitment obligations of the Company to issue, deliver or sell any Equity Securities of the Company, other than the issuance of (A) awards under the ESOP in accordance with past practice, (B) shares upon exercise of Company Options or settlement of Company RSUs under the ESOP, (C) shares pursuant to obligations incurred by the Company prior to the date hereof as set forth in Section 6.1 of the Company Disclosure Letter, or (D) Equity Securities upon conversion of Preferred Shares; provided, however, that a Material Subsidiary shall be permitted to take such actions so long as it does not result individually or in the aggregate in a Company Material Adverse Effect;
(d) Except as (x) would not have a Company Material Adverse Effect, (y) required under the terms of any Benefit Plan existing as of the date of this Agreement or (z) in the Ordinary Course or as otherwise required by Law or this Agreement, (A) amend, modify, adopt, enter into or terminate any Benefit Plan or any benefit or compensation plan, policy, program or Contract that would be a Benefit Plan if in effect as of the date of this Agreement, Sellers shall and shall cause in each Purchased Subsidiary case, (x) which exists solely for the benefit of a Senior Management Member or (y) which would materially disproportionately benefit a Senior Management Member relative to (A) conduct their operations the other participants in the Ordinary Course of Businesssuch Benefit Plan, or (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause accelerate any payment, right to payment, or benefit, or the funding of any payment, right to payment or benefit, payable or to become payable to any Senior Management Member;
(e) sell, lease, exclusively license, transfer, abandon, allow to lapse or dispose of any material property or assets, in any single transaction or series of related transactions, except for (i) transactions pursuant to Contracts entered into in the Ordinary Course, or (ii) (other than transactions involving the exclusive license of any material property or assets) transactions that do not exceed $10,000,000 individually and $50,000,000 in the aggregate or (iii) dispositions of obsolete, surplus or worn out assets that are no longer useful in the conduct of the business of the Company or its Material Subsidiaries;
(f) merge, consolidate or amalgamate with or into any Person; provided that a Material Subsidiary shall be permitted to take such actions otherwise prohibited by this subsection (f) so long as it does not result individually or in the aggregate in a Company Material Adverse Effect;
(g) make any acquisition of, or investment in, a business, by purchase of stock, securities or assets, merger or consolidation, or contributions to capital, or loans or advances, in any such case with a value or purchase price in excess of $150,000,000 individually and $300,000,000 in the aggregate;
(h) settle any Action by any Governmental Authority or any other third party material to the business of the Company in excess of $50,000,000 individually and $100,000,000 in the aggregate; provided that a Material Subsidiary shall be permitted to take such actions otherwise prohibited by this subsection (h) so long as it does not result individually or in the aggregate in a Company Material Adverse Effect;
(i) (i) split, combine or reclassify any shares of its share capital, (ii) redeem, repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of Sellers’ representations and warranties its Equity Securities, except for the redemption of Equity Securities issued under the ESOP in accordance with repurchase rights existing on the date of this Agreement, (iii) declare, set forth aside, make or pay any dividend or other distribution, payable in ARTICLE IV cash, shares, property or otherwise, with respect to be untrue in any material respect as of its share capital, or (iv) amend any term or alter any rights of any of its outstanding Equity Securities; provided that a Material Subsidiary shall be permitted to take such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay actions otherwise prohibited under the Closing.
(b) Subject to the exceptions contained in immediately preceding clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall so long as it does not be unreasonably withheld, conditioned result individually or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsoraggregate in a Company Material Adverse Effect;
(iij) issueauthorize, sellmake or incur any capital expenditures or obligations or liabilities in connection therewith, pledge, create other than any capital expenditures or obligations or liabilities in an Encumbrance or otherwise dispose of or authorize amount not to exceed $60,000,000 in the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interestsaggregate;
(iiik) declare, set aside or pay enter into any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable LawMaterial Contract, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt amend any amendments to its Organizational Documents or permit the adoption of such Material Contract in any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrancematerial respect, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect case in a manner that is adverse to any Seller that is the Company and its Subsidiaries, taken as a party theretowhole, other than except (i) in the Ordinary Course or (ii) for entering into any new Material Contract that does not aggregate for any such new Material Contract more than $5,000,000 of Businessvalue or obligations above the applicable threshold set forth in the definition of “Material Contract”; provided, however, that to the extent that another sub-section of this Section 6.1 would permit the entry into of a Material Contract in a higher dollar threshold than in the definition of “Material Contract”, then this Section 6.1(k) shall not prevent the entry into of such Material Contract in such higher dollar threshold;
(xiil) voluntarily terminate, suspend, abrogate, amend or modify any Material Permit in a manner materially adverse to the Company and its Subsidiaries, taken as a whole; provided that a Material Subsidiary shall be permitted to take such actions otherwise prohibited by this subsection (l) so long as it does not result individually or in the aggregate in a Company Material Adverse Effect;
(m) make any material change in its accounting principles or methods unless required by IFRS; or
(n) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits agreement or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, make a commitment to take do any of the foregoing actions(except to the extent that such an agreement or commitment would be permitted by a subsection of the foregoing Section 6.1(2)). For the avoidance of doubt, if any action taken or refrained from being taken by the Company or a Material Subsidiary is covered by a subsection of this Section 6.1(2) and not prohibited thereunder, the taking or not taking of such action shall not be deemed to be in violation of any other part of this Section 6.1(2).
Appears in 2 contracts
Samples: Business Combination Agreement (Grab Holdings LTD), Business Combination Agreement (Altimeter Growth Corp.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after From the date of this Agreement and until to the earlier of the Applicable Closing and the termination of this AgreementDate, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with except as otherwise expressly contemplated by this Agreement or consented to by Buyer in writing, Seller agrees to use, and agrees to cause the Selling Affiliates to use, with respect to each Country Unit, commercially reasonable efforts (or, in the consummation case of clause (v) below, reasonable best efforts) to run the Business in the ordinary course consistent with past practice and to:
(i) preserve the business relationships of the Closing, Business;
(Cii) use reasonable best efforts to preserve maintain in effect all Patent rights and applications and registrations for Trademarks included in the Ordinary Course Transferred IP that are controlled by Seller or any Selling Affiliate (other than abandonments, expirations, cancellations and the like occurring in the ordinary course of business consistent with past practice that are not material, individually or in the aggregate, to the Business);
(iii) maintain all structures, material equipment and other material tangible property of the Business in their present repair, order and condition, except for depletion and ordinary wear and tear;
(iv) perform its obligations in all material respects under material agreements, contracts and other documents relating to or affecting the present relationships Transferred Assets, Assumed Liabilities or the Business; and
(v) hold separate the Transferred Assets from the assets of Sellers Synthes and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closingits subsidiaries.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after From the date of this Agreement to the Applicable Closing Date, Seller shall not, and until shall cause the earlier Selling Affiliates not to, take any of the Closing and following actions (to the termination of this Agreementextent related to the Business), with respect to any Country Unit, without the prior written consent of Purchaser Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:):
(i) take adopt, grant, extend, amend, vary, terminate or materially increase the rate or terms of any action employment, incentive, bonus, retention, change in control, severance, termination, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any Employee of the Business, except (A) as required by any applicable Law or any Collective Bargaining Agreement, (B) as contemplated in Section 8.01 of this Agreement, (C) as may be initiated by Seller or one or more of Seller’s Affiliates with respect to which their employees generally and (D) arrangements that will not result in any liability under this Agreement or otherwise to Buyer or its Affiliates (including any retention or similar arrangements that Seller has granted approval rights intends to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorimplement that will be paid by Seller);
(ii) issuepledge, sell, pledgelease, create an Encumbrance transfer, license, assign or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of make subject to a Lien (other than any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercisePermitted Liens) any such Equity InterestsTransferred Asset, other than the sale of Inventory or obsolete, worn-out or excess equipment or assets in the ordinary course of business consistent with past practice;
(iii) declarewaive, set aside release or pay assign any dividend material claims or make any distribution (whether rights of material value that relate primarily to the Business, other than in cash, securities or other property or by allocation the ordinary course of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value business consistent with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiariespast practice;
(iv) directly transfer, assign or indirectlygrant any license or sublicense of, purchaseor covenant not to xxx under, redeem any material rights under or otherwise acquire with respect to any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiarymaterial Transferred IP;
(v) materially change enter into any contract that would constitute a Material Contract if it existed as of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Lawthe date hereof, or as modified by Parent as a result amend or otherwise modify any material term of, or terminate, any Material Contract, other than in the ordinary course of the filing of the Bankruptcy Casesbusiness consistent with past practice;
(vi) adopt enter into, amend or otherwise modify any amendments material term of, or terminate, any Collective Bargaining Agreement, except (A) in the ordinary course of business consistent with past practice, (B) as required by applicable Law or the terms of such Collective Bargaining Agreement and (C) where such amendment, modification or termination of such Collective Bargaining Agreement applies similarly to its Organizational Documents employees of Seller or permit the adoption one or more of any amendment Seller’s Affiliates other than Employees of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereofBusiness;
(vii) sell, pledge, lease, transfer, assign or dispose terminate the employment of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, Employee of the Business (other than a Permitted Encumbranceterminations for cause, in each caseas reasonably determined by Seller or any Selling Affiliate, except or terminations in the Ordinary Course ordinary course of Business business consistent with past practice) or pursuant to a Contract in existence as hire any employee of the date hereof (or entered into Business other than in compliance the ordinary course of business consistent with this Section 6.2)past practice;
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse invoice or otherwise become liable request or responsible (whether directly, contingently or otherwise) xxxx for the obligations payment in respect of any other Person, except purchase order for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;Products that have not yet been shipped; or
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alteragree, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take do any of the foregoing foregoing.
(c) Notwithstanding the foregoing, nothing herein will prevent Seller or any of its Affiliates from taking actions, including (i) contributions, transfers, assignments and acceptances of assets and liabilities, (ii) the repayment of indebtedness and the extinguishment of Liens and (iii) the cancellation of any intercompany contracts and other agreements that will not constitute Transferred Contracts, in each case in order to facilitate the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.
Appears in 2 contracts
Samples: Asset Purchase Agreement (LVB Acquisition, Inc.), Asset Purchase Agreement (Biomet Inc)
Conduct of Business. 11.1.1 During the Interim Period, Frontline shall conduct its business (considered as a whole and in all material respects) in the Ordinary Course and materially in accordance with Applicable Law. Specifically, Frontline shall (and shall cause that its Subsidiaries shall), other than actions made or taken in accordance with this Agreement or in order to give effect to the Combination or as required to comply with Applicable Law, during the Interim Period: (a) Except as not enter into any material contracts or agree to amend any existing contracts which are outside the Ordinary Course (b) not undertake any material asset acquisitions or disposals (including by way of sale or acquisitions of shares in a Subsidiary) which are outside the Ordinary Course, or enter into binding agreements for such material acquisitions or disposals outside the Ordinary Course; (c) not create any Encumbrance over any of its assets other than in the Ordinary Course; (d) not enter into any new material partnership agreement, joint venture agreement or other alliance of any nature whatsoever; (e) not enter into any transaction with any of its Connected Persons, where such transaction represents a value in excess of USD 5,000,000 or cannot be terminated within 6 months after the Tender Offer Completion Date; (f) not make, or not propose or pass any resolution to: (i) otherwise expressly contemplated by change its share capital or permitted under this Agreement, including the DIP Facilitynumber of shares; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Scheduleissue any financial instrument or grant any other rights giving a right to subscribe for or purchase shares; or (iii) approved reduce or increase the number of shares held in treasury by Frontline; (g) not forgive, settle or agree to defer the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect settlement of any Subsidiary claims or legal proceedings individually in excess of Parent)USD 5,000,000 and USD 10,000,000 in aggregate; (h) not incur any material capital expenditure on any individual item, or (iv) required by or resulting from borrow any changes to applicable Lawsmaterial sum, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in outside the Ordinary Course and which is in excess of Business, USD 5,000,000; (Bi) not take any action inconsistent with this Agreement steps or with the consummation actions aimed towards a de-listing of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation its shares from NYSE or warranty is made OSE or deemed to be made and (E) not take any action that would otherwise might reasonably be expected to prevent, impede or materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier completion of the Closing and the termination transactions contemplated in this Agreement; (j) not amend or alter its memorandum or articles of association, bye-laws or any other organizational document; (k) other than as set out in this Agreement, without or in the event of breach of duty or any other qualified basis for dismissal, not to take any steps or actions aimed at changing the composition of the Euronav Board, to remove the Euronav CEO or in any other manner attempt to control or direct Euronav’s business or operations; or (l) not to agree or enter into any commitment to do any of the foregoing, or make public its intention to do any of the foregoing, in each case except with the prior written consent of Purchaser (which consent shall Euronav, not to be unreasonably withheld, conditioned delayed or delayed), such Seller shall not, and shall conditioned. To the extent Euronav has not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) provided or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of withheld its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of consent within ten Business or pursuant to a Contract in existence as of Days following the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securitiesof Frontline’s request thereto, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) Euronav shall be deemed to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) have provided its prior written consent for the obligations purposes of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsthis Clause.
Appears in 2 contracts
Samples: Combination Agreement (Frontline LTD /), Combination Agreement (Frontline LTD /)
Conduct of Business. (a) Except as During the Interim Period, each of PubCo, Amalgamation Sub and Acquiror shall, except (i) as otherwise expressly explicitly contemplated by this Agreement or permitted under this Agreementthe other Transaction Documents, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; as required by Law, (iii) approved as consented to by the Bankruptcy Court (or any other court or other Governmental Authority Company in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing (which consent shall not be unreasonably conditioned, withheld, conditioned delayed or delayeddenied) or (iv) as set forth in Section 9.4 of the Acquiror Disclosure Letter, (A) use reasonable best efforts to operate its business in the ordinary course consistent with past practice; and (B) comply in all material respects with its Governing Documents. Without limiting the generality of the foregoing, except as set forth in Section 9.4 of the Acquiror Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), such Seller PubCo, Amalgamation Sub and Acquiror shall not, and PubCo shall cause its Subsidiaries not permit to, except as otherwise contemplated by this Agreement or the other Transaction Documents or as required by Law:
(a) change, modify or amend the Trust Agreement (in the case of Acquiror only) or its Governing Documents, or seek any approval from its shareholders to do so, except as contemplated by the Transaction Proposals;
(b) merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or be acquired by any other Person;
(c) (x) make or declare any dividend or distribution to its shareholders or make any other distributions in respect of any of its Equity Securities, (y) split, combine, reclassify or otherwise amend any terms of its Equity Securities, or (z) purchase, repurchase, redeem or otherwise acquire any of its issued and outstanding Equity Securities, other than, in the Key Subsidiaries case of Acquiror only, redemptions of Acquiror Class A Ordinary Shares made as part of the Acquiror Share Redemptions;
(d) except in the ordinary course of business consistent with past practice, (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any Tax authority to change any accounting method in respect of material Taxes, (D) enter into any closing agreement in respect of material Taxes or enter into any Tax sharing or similar agreement (other than customary commercial Contracts not primarily related to Taxes), (E) settle any claim or assessment in respect of material Taxes, or (F) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or with respect to any material Tax attribute that would give rise to any claim or assessment of Taxes;
(e) except as contemplated by this Agreement or the Transactions, take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment;
(f) other than as expressly required by the Sponsor Support Agreement or any other Transaction Document, enter into, renew or amend in any material respect, any Contract with Sponsor or an Affiliate of Acquiror (including (i) any Person in which the Sponsor has a direct or indirect legal or beneficial ownership interest of five percent (5%) or greater and (ii) any Person who has a direct or indirect legal or beneficial ownership interest of five percent (5%) or greater in the Sponsor);
(g) incur, guarantee or otherwise become liable for any Indebtedness, other than (i) liabilities incurred in the ordinary course of business and in an amount, individually or in the aggregate, not to exceed $100,000 and (ii) any Acquiror Transaction Expenses;
(h) (A) issue any Equity Securities or securities exercisable for or convertible into Equity Securities (other than, in the case of Acquiror only, issuances of new Acquiror Warrants issued to Sponsor in respect of the capitalization of any Working Capital Loans or issuances of Acquiror Shares issuable upon, or subject to, the exercise or settlement of the Acquiror Warrants, and in the case of clauses (iPubCo only, the issuance of the Aggregate Merger Consideration and the Aggregate Amalgamation Consideration, and the assumption of the Assumed Options, the consummation of the transactions contemplated by the Company Warrant Assumption Agreement and the assumption of the Converted RSU Awards), (ix), (xiiiB) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value equity-based awards with respect to any Equity Interest Securities not outstanding on the date hereof, or (C) in the case of Seller Acquiror and PubCo only, other than pursuant to the Transaction Documents, amend, modify or waive any Key Subsidiary)of the terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, except for dividends and distributions among including any amendment, modification or reduction of the Purchased Subsidiarieswarrant price set forth therein;
(ivi) directly make any change in its accounting principles or indirectly, purchase, redeem or otherwise acquire methods unless required by GAAP;
(j) form any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(vk) materially change any of liquidate, dissolve, reorganize or otherwise wind-up its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;business and operations; or
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xiil) enter into any Seller Material Contract other than as contemplated by agreement to do any action prohibited under this Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions9.4.
Appears in 2 contracts
Samples: Business Combination Agreement (PropertyGuru Group LTD), Business Combination Agreement (Bridgetown 2 Holdings LTD)
Conduct of Business.
(a) Except as (i) otherwise expressly contemplated consented to or approved by each of the other Parties in writing or as permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination terms of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller AHC shall not, and shall not permit any of the Key their Subsidiaries to, take (and in the case of clauses (i), (ix), (xiiior omit to take) or agree (xvi)in writing or otherwise) to take (or omit to take) any action which would prevent or materially impair the ability of AHC to consummate the transactions contemplated by this Agreement, including, without limitation, actions that would be reasonably likely to prevent or materially impair AHC from satisfying all of its covenants, obligations and agreements contained in this Agreement or from obtaining the receipt of any consent, registration, approval, permit or authorization, that is necessary in connection with the execution and delivery of this Agreement, the applicable Related Agreements (for the applicable agreement) and the consummation of the transactions contemplated hereby and thereby.
(b) Except as consented to or approved by each of the other Parties in writing or as permitted under the terms of this Agreement, a Legacy Owner shall not take (or omit to take) or agree (in writing or otherwise) to take (or omit to take) any action which would prevent or materially impair the ability of such Legacy Owner to consummate the transactions contemplated by this Agreement, including, without limitation, actions that would be reasonably likely to prevent or materially impair such Legacy Owner from satisfying all of its covenants, obligations and agreements contained in this Agreement or from obtaining the receipt of any consent, registration, approval, permit or authorization, that is necessary in connection with the execution and delivery of this Agreement, the applicable Related Agreements (for the applicable phase) and the consummation of the transactions contemplated hereby and thereby.
(c) Except as consented to or approved by each of the other Parties in writing or as permitted under the terms of this Agreement, a Quartz Parent Entity shall not, and shall not permit any Purchased Subsidiary) of their Subsidiaries to:
(i) , take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into omit to take) or agree (in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently writing or otherwise) for to take (or omit to take) any action which would prevent or materially impair the ability of such Quartz Parent Entity to consummate the transactions contemplated by this Agreement, including, without limitation, actions that would be reasonably likely to prevent or materially impair such Quartz Parent Entity from satisfying all of its covenants, obligations and agreements contained in this Agreement or from obtaining the receipt of any other Personconsent, except for Indebtedness for borrowed money among any Seller and Subsidiary registration, approval, permit or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness authorization, that is necessary in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent connection with the expiration execution and delivery of a Collective Bargaining this Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, Related Agreements (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (Fapplicable phase) forgive any loans to Employees and the consummation of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;transactions contemplated hereby and thereby.
(xid) modify, amend, terminate Nothing in this Section 6.1 is intended to cause or waive require any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser Party or any of its Subsidiaries or to cede control to any successor thereto or (B) any Affiliates other Party of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line its ordinary course of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsand commercial decisions.
Appears in 2 contracts
Samples: Exchange Agreement, Exchange Agreement
Conduct of Business. (a) Except as for matters (i1) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier 5.01 of the Closing and the termination of this AgreementDisclosure Schedule, without the prior written (2) consented to by Purchaser in writing in advance (such consent of Purchaser (which consent shall not to be unreasonably withheld, conditioned or delayed), such Seller shall notor (3) otherwise expressly required by this Agreement, applicable Law or the Restructuring Plan, during the period from the Binding Offer Date (A) until the Initial Closing Date with respect to the Transferred Assets, Transferred Subsidiaries and Transferred Shares transferred on the Initial Closing Date and (B) until the applicable Deferred Closing Date for all Transferred Assets, Transferred Subsidiaries and Transferred Shares that are so transferred in accordance with Section 2.05, LivaNova shall, and shall cause each of the other Sellers and its and their respective affiliates to, (x) use reasonable best efforts to (I) preserve intact the Assets Related to the Business in all material respects and the operations and goodwill Related to the Business, and (II) preserve their business relationships, as of the date hereof and as of the Initial Closing Date (or the date of the applicable Deferred Closing (in accordance with Section 2.05)), with the Business’ customers, suppliers, distributors, creditors, employees and other Persons having a business relationship with the Business in all material respects, and (y) cause the Business and the Transferred Subsidiaries (I) to be conducted in all material respects in the ordinary course and (II) not permit to take any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tofollowing actions:
(i) take adopt or propose any action with respect change to which the charter, articles of association, certificate of incorporation or bylaws (or similar organizational documents) of any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from SponsorTransferred Subsidiary;
(ii) issue, sell, pledge, create an Encumbrance dispose of, transfer, encumber or otherwise dispose of sell any capital stock, notes, bonds or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests other securities of the Transferred EntitiesSubsidiaries (or any option, or grant any optionswarrant, warrants phantom right, call, commitment or other rights right to purchase acquire the same) or obtain (including upon conversion, exchange or exercise) redeem any such Equity Interestsof the capital stock of the Transferred Subsidiaries;
(iii) declaresplit, set aside combine, subdivide, reclassify or pay redeem, or purchase or otherwise acquire, any dividend or make any distribution (whether in cash, outstanding securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Transferred Subsidiaries;
(iv) directly (A) grant, pay or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Lawaward, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
commit to grant, pay or award, any bonuses or incentive compensation (viincluding any equity-based awards and compensation) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any EncumbranceEmployee, other than a Permitted Encumbrance, (x) short-term cash incentive bonus plans in each case, except in the Ordinary Course ordinary course of Business business consistent with past practice or (y) as required pursuant to a Contract in existence as the terms of the date hereof (any existing Employee Benefit Plan or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or Contract; (B) assumeincrease the salary, guaranteewages, endorse benefits, bonuses or otherwise other compensation payable or to become liable or responsible (whether directlypayable to the Employees, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction vesting of any Indebtedness when due in accordance with its originally scheduled terms;
accrued benefits under the Employee Benefit Plans, other than (x) other than annual merit-based salary increases in the ordinary course of business consistent with past practice or (y) as is required by pursuant to the terms of a Parent any existing Employee Benefit Plan and Policy or Contract; (in effect on C) hire, terminate the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule)employment of, any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of promote any Employee other than terminations for cause and hiring of Sellers or any Purchased Subsidiary (except Employees for increases in salary or wages replacement due to attrition in the Ordinary Course ordinary course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), business; (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (CD) establish, adopt, enter into, amend in any material respect or terminate any Employee Benefit Plan (including or any change to any actuarial plan or other assumption used to calculate funding obligations with respect to any agreement that would be an Employee Benefit Plan or any change to if in existence on the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determineddate of this Agreement), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), ; (E) increase or promise to increase or provide for the funding under take any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion action to accelerate the time of vesting, funding or payment or vesting of any compensation or benefits under any Employee Benefit Plan;
; in each case, except as otherwise required by applicable Laws; or (xiF) modifyother than in connection with replacements due to attrition in the ordinary course of business, amendtransfer or modify the job responsibilities of (1) any employee of Sellers or their affiliates, terminate who is not an Employee, such that such person becomes an Employee; or waive (2) any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect Employee in a manner that is adverse to any Seller that is a party thereto, other than would result in such individual no longer meeting the Ordinary Course definition of Businessan Employee;
(xiiv) enter into with respect to any Seller Material Contract Transferred Subsidiary, declare, set aside, or pay any dividend or other distribution, in the case of any such dividend or distribution, that is payable in stock or property (other than as contemplated by Section 6.7cash or Excluded Assets) with respect to its capital stock or other equity interests therein;
(xiiivi) acquire (including by mergerwith respect to any Transferred Subsidiary, consolidation, combination or acquisition adopt a plan of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, liquidation or undertake a dissolution, merger, consolidation, restructuring, recapitalization, amalgamation, reclassification or other reorganization to the extent, in each case, inconsistent with the Restructuring Plan or the consummation of the Acquisitions as contemplated by this Agreement and the Ancillary Agreements;
(vii) sell, lease, license, transfer, assign, abandon or otherwise dispose of or xxxxx x Xxxx (other than a Permitted Lien) in respect of any Transferred Assets, excluding any Transferred Registered Intellectual Property, or the Assets of a Transferred Subsidiary, other than (A) the sale of products and non-exclusive licenses in the ordinary course of business or (B) the sale of disposal of any Inventory at the end of its useful life or out of redundancy;
(viii) sell, license, transfer, assign, abandon, permit to lapse or otherwise dispose of or agree not to assert or xxxxx x Xxxx (other than a Permitted Lien) in respect of any Transferred Intellectual Property, other than in the ordinary course of business consistent with past practice, including expirations of Intellectual Property registrations or Patents in accordance with the applicable statutory term;
(ix) intentionally disclose any know-how, material confidential information or Trade Secrets relating to the Business, other than pursuant to written confidentiality agreements entered into in the ordinary course of business and including reasonable protections of such know-how, other material confidential information and Trade Secrets;
(x) permit any Transferred Subsidiary or Asset Seller to create, incur, assume or guarantee any Indebtedness in excess of $1,000,000 or issue or sell any notes, bonds or other debt securities or warrants or other rights to acquire any debt security of a Transferred Subsidiary or Asset Seller, in each case, other than (A) trade payables in the ordinary course of business and (B) Indebtedness that will not be an Assumed Liability and that will not result in any Lien (other mannerthan a Permitted Lien) following the Initial Closing on the Transferred Shares or Transferred Assets;
(xi) enter into, amend or terminate any Contract between a Transferred Subsidiary, on the legal structure one hand, and LivaNova or ownership its affiliates (other than a Transferred Subsidiary), on the other hand, except for such ordinary course commercial Contracts that either (A) do not involve the payment and receipt of consideration in excess of $1,000,000 or (B) that (1) will be terminated on or prior to the Initial Closing or (2) are terminable without penalty within thirty (30) calendar days;
(xii) permit any Transferred Subsidiary or Asset Seller to create, incur, assume, or guarantee any intercompany accounts, whether payables or receivables, that will not be terminated prior to the Initial Closing, in each case other than in the ordinary course of business;
(xiii) fail to satisfy when due any material Liability (other than (x) any such Liability that is being contested in good faith or (y) any such Liability of a nature that is included in the definition of “Indebtedness” or “Current Liabilities”);
(xiv) enter into any Contract that, had it been in place as of the date hereof, would have been a Business Contract, or terminate or materially amend any Business Contract, in each case other than any such Contract which requires annual payments or revenue of $2,000,000 or less or which is entered into or modified in the ordinary course of business or to the extent required to renew or extend the term of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoingBusiness Contract that would otherwise expire;
(xv) terminate, amend or modify in any manner any Lease other than pursuant to its terms or in the ordinary course of business or enter into any Contract that limits new lease, sublease or otherwise restricts occupancy agreement with respect to any Assumed Lease Real Property or that to which a Transferred Subsidiary would reasonably be expected toa party except in the ordinary course of business;
(xvi) transfer any assets or Liabilities between the Business, after on the Closingone hand, restrict or limit in and any material respect other business of Sellers and their respective subsidiaries (other than the Transferred Subsidiaries), on the other hand, other than (A) as expressly contemplated or permitted by this Agreement, the Ancillary Agreements and/or the Restructuring Plan, and (B) for the settlement of existing intercompany payables and intercompany receivables in the ordinary course of business;
(xvii) enter into any compromise, settlement or release with respect to any Proceeding relating to the Business other than (A) any such compromise, settlement or release that results only in an obligation of a Transferred Subsidiary to pay no more than $500,000 (and such amount is paid substantially concurrently with the settlement), does not impose any ongoing limits on the conduct or operation of the Business, and that results in a full release of Purchaser or and its affiliates (including the Transferred Subsidiaries) of the claims giving rise to such Proceeding without any of post-Closing Liability on Purchaser, its Subsidiaries or any successor thereto subsidiaries and the Business, or (B) any Affiliates such compromise, settlement or release that results only in a claim of Purchaser a Transferred Subsidiary to receive a payment of no more than $500,000 in respect of settling any such Proceeding; provided that, such compromise, settlement or release does not constitute the cancellation or compromise of any successor theretomaterial Indebtedness or claim or waiver of any rights, in each case, of material value to the case Business without the Business receiving a realizable benefit of each similar or greater value, or voluntarily suffering of clause any material loss;
(xviii) with respect to the Business, the Transferred Subsidiaries and the Transferred Assets, except as required by applicable Law: (A) make, change or revoke any material Tax election, (B) settle or compromise any claim, notice, audit report or assessment in respect of material Taxes, (C) change any annual Tax accounting period, adopt or change any method of Tax accounting, (D) file any amended Tax Return or prepare or file any Tax Return in a manner inconsistent with past practice, (E) enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any material Tax (other than commercial agreements entered into in the ordinary course of business the principal subject matter of which is not Taxes), (F) file any claim for, or surrender any right to claim, a material Tax refund; (G) consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment (other than any automatic extensions that are granted consistent with past practice), or (H) incur any liability for Taxes outside the ordinary course of business or fail to pay any Tax that becomes due and payable (including any estimated Tax payments);
(xix) change any method of accounting or accounting practice used in connection with the Business, except for any such changes required by GAAP or applicable Law;
(xx) (A) assume, enter into or amend any Collective Agreement relating to the Business, binding the Transferred Subsidiaries or covering Employees; or (B) recognize any labor union, works council or labor organization as the bargaining representative for any Employee, in each case, other than as required by applicable Law;
(xxi) make any material loans, advances or capital contributions to, or investments in, any other Person (other than (A) customary loans or advances to employees in amounts not material to the maker of such loan or advance, (B) to any subsidiary of a Seller, or (C) pursuant to Contracts in effect on the date hereof;
(xxii) make any capital expenditure Related to the Business, other than any expenditure which involves $200,000 or less;
(xxiii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership, limited liability company or other business organization or division thereof or any equity interest therein, or enter into any new joint venture, strategic alliance, partnership or similar venture;
(A) accelerate the delivery or sale of products or the incurrence of capital expenditures or offer discounts on the sale of products or premiums on the purchase of raw materials, in each case, other than in the ordinary course of business, (B) materially change the manner in which any Seller or any subsidiary thereof provides warranties, discounts, credits, accommodations or other concessions, directly or indirectly, to customers of the Business, or (C) materially change the existing account structure, customer payment instructions or any other payment or collection practices with respect to payables or receives of the Business;
(xxv) terminate or permit the lapse of any insurance policies that are material to the Business (unless replaced with a comparable insurance policy);
(xxvi) abandon, deviate from engaging or competing in alter plans with respect to the Restructuring Plan;
(xxvii) enter into any line of business or in any geographic area;other than the Business; or
(xvixxviii) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, a Contract to take do any of the foregoing actionsforegoing.
(b) Nothing contained in this Agreement is intended to give Purchaser or its affiliates, directly or indirectly, the right to control or direct the Business prior to the Closing. Prior to the Closing, each of Purchaser, on the one hand, and LivaNova and its affiliates, on the other hand, shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its affiliates respective operations.
(c) Nothing contained in this Agreement shall be construed to prohibit or restrict a change of control of LivaNova (regardless of the form of such transaction, whether through merger, acquisition of stock or otherwise).
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (LivaNova PLC), Stock and Asset Purchase Agreement (LivaNova PLC)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after From the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of through the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course Parent agrees that it shall not, and shall not permit any of Business and in all its Subsidiaries to, enter into any transaction involving a merger, consolidation, business combination, or disposition of any material respects the present relationships amount of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not Seller’s assets or take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any other action that would would, in each case, be reasonably be expected to materially prevent or delay the Closing.
(b) Subject to performance by the exceptions contained in clauses (i) through (iv) Seller Parties of Section 6.2(a), each Seller agrees that, from and after their respective obligations under this Agreement. From the date of this Agreement and until through the earlier of the Closing and the termination of this AgreementClosing, without the prior written consent of Purchaser except as set forth on Schedule 6.1 or as consented to by Buyer in writing (which consent shall not be unreasonably withheld, conditioned or delayed), such (a) Seller shall notcause Centrahoma JV to (x) operate its business in the ordinary course and (y) without limiting the generality of the effect of the foregoing, use Reasonable Efforts to preserve intact the business of Centrahoma JV and Centrahoma JV’s relationships with customers, suppliers and others having business relationships with Centrahoma JV, (b) Seller shall not in any way transfer, dispose of or encumber any of the ARMC Centrahoma Interest or agree, in writing or otherwise, to the foregoing and (c) Parent shall cause Centrahoma JV not to, and shall not permit cause Seller to vote its membership interests in Centrahoma JV against any of the Key Subsidiaries (and action to, in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) toCentrahoma JV:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsoramend its Organizational Documents;
(ii) issueliquidate, dissolve, recapitalize or otherwise wind up its business;
(iii) (A) grant or increase any bonus, salary, severance, termination or other compensation or benefits or other enhancement to the terms or conditions of employment to any employee of Centrahoma JV (other than bonuses that are taken into account in the calculation of Net Working Capital) or (B) adopt, enter into or amend in any material respect any employee benefit plan or collective bargaining agreement;
(iv) change its accounting methods, policies or practices, except as required by GAAP or applicable Laws;
(v) change any Tax method of accounting for any material item except as required by Law, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment;
(vi) sell, pledgeassign, create an Encumbrance transfer, lease or otherwise dispose of any assets except in the ordinary course of business or authorize pursuant to the issuance, sale, pledge, Encumbrance or disposition terms of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interestsa Material Contract;
(iiivii) make any capital expenditure in excess of $250,000 other than capital expenditures reflected on Schedule 6.1 and other than reasonable capital expenditures in connection with any emergency or force majeure events affecting a Company;
(viii) merge or consolidate with, or purchase substantially all of the assets or business of, or equity interests in, or make any loans, advances or capital contributions to, or investments in, any Person (other than in a Company or extensions of credit to customers in the ordinary course of business);
(ix) issue or sell any equity interests, notes, bonds or other securities of Centrahoma JV (except for intercompany loans from or to any of the Seller Parties or their respective Affiliates in the ordinary course of business that will be eliminated at or prior to Closing), or any option, warrant or right to acquire the same;
(x) declare, set aside or pay any dividend or make any other distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller its equity interests, or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly repurchase or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Planinterests;
(xi) modifyadopt any profit sharing, amendcompensation, terminate savings, insurance, pension, retirement or waive other benefit plan or otherwise hire any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Businessemployees;
(xii) enter into incur, create or assume or modify the terms of any Seller Material Contract Indebtedness, including a Company Guarantee, or subject any asset of Centrahoma JV to any Lien other than as contemplated by Section 6.7a Permitted Lien;
(xiii) acquire (including by mergerterminate or close any facility, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions operation of portfolio assets and acquisitions Centrahoma JV except in the Ordinary Course ordinary course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000business;
(xiv) alterexcept to the extent fully accrued in the Financial Statements, whether through a complete compromise, settle, grant any waiver or partial liquidationrelease any claims relating to any Proceeding other than compromises, dissolutionsettlements, mergerwaivers or releases (to the extent not already described in Schedule
6.1) that result in Centrahoma JV incurring any costs or foregoing any benefits that individually are less than $50,000 and in the aggregate are less than $250,000, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership each case net of any Key Subsidiary, amounts recovered or adopt or approve a plan with respect reasonably expected to any of the foregoingbe recovered from insurance;
(xv) materially modify the terms of any Material Contract or enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or revenue-generating Contract that has a term longer than 30 days, (B) any Affiliates Contract involving expenditures in excess of Purchaser or any successor thereto, in the case of each of clause (A) $250,000 or (B), from engaging or competing in any line of business or in any geographic area;C) Contract that would constitute a Material Contract; or
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, whether in writing or otherwise, to take do any of the foregoing actionsforegoing.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Antero Resources LLC), Purchase and Sale Agreement (Antero Resources Finance Corp)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under by this Agreement, Agreement (including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority as set forth in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of ParentSchedule 4.1); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreementshall not, without the prior written Buyer's consent of Purchaser (which such consent shall not to be unreasonably withheld, conditioned or delayed)):
(a) fail to use its commercially reasonable best efforts to preserve in such condition as used in the ordinary course of business for the 12-month period prior to the date hereof, the Acquired Assets, including the Business to the extent conducted under the Assumed Contracts;
(b) fail to use its commercially reasonable best efforts to maintain the tangible Acquired Assets in at least the same condition and state of repair as such Seller shall nottangible Acquired Assets are in on the date hereof, except for ordinary wear and shall not permit tear and damage by casualty governed by Section 4.6, or fail to repair, maintain, or replace any of the Key Subsidiaries (and tangible Acquired Assets consisting of equipment in accordance with the normal standards of maintenance applicable in the case of clauses industry;
(i), (ix), (xiiic) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, materially amend (other than extending or renewing (including under the UST Credit Facilitiesallowing for auto-renewals) for a term not more than one year, without obtaining the prior approval of such action from Sponsor;
otherwise materially amending terms or conditions) or terminate (ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent than as a result of a material breach by the filing of the Bankruptcy Cases;
counterparty) any Assumed Contract (vi) adopt any amendments provided, that Seller shall be permitted to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject remove non-performing Kiosks as provided in and pursuant to any EncumbranceContract), other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (Bii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) default in any material respect in (or take or omit to take any action that, with or without the giving of notice or passage of time, would constitute a manner that is adverse to material default) under any Seller that is a party thereto, other than in the Ordinary Course of BusinessAssumed Contract;
(xiid) enter merge or consolidate with or into any Seller Material Contract other than as legal entity, dissolve, or liquidate, if such action would in any way materially and adversely affect the Acquired Assets or the Business or its operations or the consummation of the transactions contemplated by Section 6.7thereby;
(xiiie) acquire (including by merger, consolidation, combination or the acquisition of Equity Interests any equity interest or assets) any Person or business or division thereof sell (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, by merger, consolidation, restructuringor the sale of an equity interest or assets), reorganization lease, or in any other manner, the legal structure or ownership dispose of any Key SubsidiaryAcquired Assets except in the ordinary course of business consistent with past practice or, even if in the ordinary course of business and consistent with past practices, whether in one or more transactions, in no event involving an Acquired Asset or Acquired Assets having an aggregate fair market value in excess of $100,000, provided, however, that nothing in this Agreement shall prohibit Seller from performing its contractual obligations under the Master Agreement between Zulia Pty Ltd. and NCR Australia Pty Ltd. dated July 28, 2011, and the agreements and purchase orders incorporated therein;
(f) mortgage, pledge, or adopt subject to any material Lien, other than a Permitted Lien, any of the Acquired Assets;
(g) except as required by GAAP, Applicable Laws, or approve a plan circumstances which did not exist as of December 31, 2011, change any of the material accounting principles or practices used by it with respect to any of the foregoingBusiness;
(xvh) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after fail to meet the Closing, restrict or limit contractual obligations relating to the Acquired Assets in any all material respects and perform and pay its obligations with respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, to the Acquired Assets as they mature in the case of each of clause (A) or (B), from engaging or competing in any line ordinary course of business or consistent with past practice in any geographic areaall material respects;
(xvii) enter into fail to (i) pay any Contracts maintenance fees or annuities due and payable at or prior to the Effective Time for capital expendituresthe Purchased Intellectual Property that is subject to a registration or application for registration in any jurisdiction, exceeding $100,000,000 (ii) make any required governmental filings required at or prior to the Effective Time to continue the Purchased Intellectual Property that is subject to a registration, and (iii) continue, until the Effective Time, to prosecute (including in conjunction with any patent application appeals, as applicable) and maintain, in both cases, consistent with Seller's ordinary course of business and industry standard practices, all material pending patent, copyright and trademark applications included in the aggregate Purchased Intellectual Property in connection with any single project or group of related projectsall jurisdictions in which such applications are pending;
(xviij) open fail to promptly advise Buyer in writing of any material adverse change in the Acquired Assets or reopen any major production facilitythe Business to the extent conducted under the Assumed Contracts; andor
(xviiik) agreeagree to or make any commitment, orally or in writing or otherwisewriting, to take any of the foregoing actionsactions listed in (a)-(j) above or otherwise prohibited by this Agreement or any other Transaction Document.
Appears in 2 contracts
Samples: Asset Purchase Agreement (NCR Corp), Asset Purchase Agreement (NCR Corp)
Conduct of Business. (a) Except as During the Interim Period, other than (i) otherwise as expressly contemplated by required or permitted under by this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 with the prior written consent of the Sellers’ Disclosure Schedule; Parent (not to be unreasonably withheld, delayed or conditioned), (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed as required by or in respect reasonably responsive to a request or requirement of any Subsidiary a Governmental Authority, applicable Law or the rules and regulations of Parent); or the NYSE American, (iv) required by any actions taken reasonably and in good faith in response to or resulting from any changes as a result of COVID-19 or in response to applicable Laws, from and after the date of this Agreement and until the earlier or to comply with COVID-19 Measures or (v) as set forth in Section 6.2(a) of the Closing and Company Disclosure Letter (the termination of this Agreementexceptions in clauses (i)-(v), Sellers shall the “Interim Covenant Exceptions”), the Company shall, and shall cause each Purchased Subsidiary its Subsidiaries to (Ax) use commercially reasonable efforts to conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and respective businesses in all material respects in the present relationships of Sellers ordinary course consistent with past practice, (y) use commercially reasonable efforts to maintain and each of their Subsidiaries with preserve intact, in all material respects, their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made organizations and (Ez) not take any action conduct their respective businesses in a manner that would reasonably be expected to materially prevent or delay cause the consolidated balance sheet metrics set forth in Section 6.2(a) of the Company Disclosure Letter to be true and correct in all material respects at all times through the Closing; provided that no action by the Company or its Subsidiaries with respect to matters specifically addressed by any provision of Section 6.2(b) or Section 6.20 (subject to the exceptions set forth therein) shall be deemed a breach of this sentence, unless such action would constitute a breach of such other provision.
(b) Subject to During the exceptions contained in clauses (i) through (iv) of Section 6.2(a)Interim Period, each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller Company shall not, and shall cause its Subsidiaries not permit to, other than pursuant to any Interim Covenant Exception or as set forth in Section 6.2(b) of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) toCompany Disclosure Letter:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsoramend their respective Organizational Documents (except for immaterial or ministerial amendments);
(ii) issuesplit, sellcombine or reclassify any capital stock, pledgevoting securities or other equity interests of the Company or any of its Subsidiaries, create an Encumbrance other than (A) to satisfy applicable Tax withholding and/or exercise prices upon vesting, settlement or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition exercise of any Company Equity Interests Award outstanding as of the Transferred Entitiesdate hereof or granted after the date hereof without violation of this Agreement, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exerciseB) any such Equity Intereststransactions involving a wholly owned Subsidiary of the Company;
(iii) declaremake, set aside declare or pay any dividend dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock, or any other securities or obligations convertible (whether in cash, securities currently convertible or other property convertible only after the passage of time or by allocation the occurrence of additional Indebtedness to certain events) into or exchangeable for any Seller or any Key Subsidiary without receipt shares of fair value with respect to any Equity Interest of Seller or any Key Subsidiary)its capital stock, except for dividends and distributions (A) any such transactions solely among the Purchased Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, (B) the acceptance of shares of Common Stock, or withholding of shares of Common Stock otherwise deliverable, to satisfy withholding Taxes incurred in connection with the vesting and/or settlement of Company Equity Awards or (C) settlements in cash (in whole or in part);
(iv) directly grant any Company Equity Awards or indirectlyother equity-based awards or interests, purchaseor grant any individual, redeem corporation or otherwise acquire other entity any Equity Interests or any rights right to acquire any Equity Interests shares of any Seller its capital stock, other than as set forth in Section 6.2(b)(iv) or Key SubsidiarySection 6.2(b)(x) of the Company Disclosure Letter;
(v) materially change issue, purchase, sell or otherwise permit to become outstanding any additional shares of its financial accounting policies capital stock or procedures securities convertible or exchangeable into, or exercisable for, any shares of its capital stock or any options, warrants, or other rights of any kind to acquire any shares of its methods of reporting income, deductions or other material items for financial accounting purposescapital stock, except as permitted by GAAP, a SEC rule, regulation (i) due to the vesting and/or settlement of Company Equity Awards granted prior to the date hereof in accordance with their terms or policy or applicable Lawotherwise in accordance with Section 6.2(b)(iv), or as modified by Parent as a result of (ii) in transactions solely among the filing of Company and its Subsidiaries or among the Bankruptcy CasesCompany’s wholly owned Subsidiaries;
(vi) adopt any amendments to its Organizational Documents or permit the adoption a plan of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuringrecapitalization or other reorganization, reorganization other than (A) the Transactions and (B) any such transaction (1) solely among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries or (2) pursuant to Contracts in effect prior to the execution of this Agreement that have been disclosed to Parent;
(vii) incur, assume, endorse, guarantee or otherwise become liable for any indebtedness for borrowed money or issue or sell any debt securities or any rights to acquire any debt securities, except for (A) any indebtedness for borrowed money among the Company and/or its wholly owned Subsidiaries or among wholly owned Subsidiaries of the Company, (B) guarantees by the Company of indebtedness for borrowed money of wholly owned Subsidiaries of the Company or guarantees by Subsidiaries of the Company of indebtedness for borrowed money of the Company or any of its wholly owned Subsidiaries, which indebtedness is incurred in compliance with this clause (vii) or is outstanding on the date hereof, and (C) indebtedness incurred to replace, renew, extend, refinance or refund any indebtedness for borrowed money of the Company or its wholly owned Subsidiaries, in the case of this clause (C), up to an amount equal to the indebtedness being replaced, renewed, extended, refinanced or refunded (plus any related fees, expenses, premiums and accrued interest);
(viii) other than in accordance with Contracts in effect on the date hereof and set forth in Section 6.2(b) of the Company Disclosure Letter, directly or indirectly (including by merger or consolidation with any Person) sell, lease, swap, exchange, farmout, license, sell and leaseback, abandon, mortgage or otherwise encumber or subject to any Lien (other than a Permitted Lien) or otherwise dispose in whole or in part of any of its material properties, assets or rights or any interest therein, in each case other than (A) the sale of Hydrocarbons in the ordinary course of business consistent with past practice, or (B) the sale or other disposition of equipment that is surplus, obsolete or replaced made in the ordinary course of business consistent with past practice;
(ix) directly or indirectly acquire or agree to acquire (A) by merging or consolidating with, purchasing a substantial equity interest in or a substantial portion of the assets of, making an investment in or loan or capital contribution to or in any other manner, any corporation, partnership, association or other business organization or division thereof or (B) any assets that are otherwise material to the legal structure or ownership of any Key SubsidiaryCompany and its Subsidiaries, or adopt or approve a plan with respect to any of in each case other than transactions solely among the foregoingCompany and its wholly-owned Subsidiaries;
(xvx) except as required by applicable Law or any Company Benefit Plan made available to Parent prior to the date of this Agreement and in effect as of the date hereof, (A) establish, adopt, amend or terminate any Company Benefit Plan or create or enter into 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; (B) increase the compensation (including paying or committing to pay any bonuses or incentive compensation (whether cash, equity, or equity-based)) or benefits, in the aggregate, of any current or former director, officer, employee or independent contractor, in each case of the Company or its Subsidiaries; or (C) accelerate the time of vesting or payment or funding of any payment or benefit under any Company Benefit Plan or otherwise;
(xi) implement or adopt any material change in its financial accounting principles or methods, other than as may be required by GAAP, XXXXX or applicable Law;
(xii) (A) terminate or amend in a manner materially adverse to the Company or any of its Subsidiaries, any Company Material Contract, Joint Operating Agreement, Oil and Gas Lease, Right-of-Way or Lease other than, for the avoidance of doubt, any renewal or expiration in the ordinary course of business of such Company Material Contract, Joint Operating Agreement, Oil and Gas Lease, Right-of-Way or Lease according to such Company Material Contract’s, Oil and Gas Lease’s, Joint Operating Agreement’s, Right-of-Way or Lease’s terms on substantially the same terms, (B) enter into any Contract that limits or otherwise restricts Lease that, if entered into prior to the date hereof, would be a Company Material Contract, Joint Operating Agreement, Lease, Right-of-Way, or that would reasonably be expected toOil and Gas Lease, after the Closingor (C) waive any material right under or release, restrict settle or limit compromise any material claim under any Company Material Contract, Joint Operating Agreement, Oil and Gas Lease, Right-of-Way or Lease;
(xiii) make any loan, advance or capital contribution to or investment in any material respect Person (other than the Company or any wholly owned Subsidiary of the Company), other than (A) Purchaser advances for expenses required under customary joint operating agreements to operators of Oil and Gas Properties of the Company or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, expense advancements in the case of each of clause (A) or (B), from engaging or competing in any line ordinary course of business to directors, officers and employees of the Company;
(xiv) without prejudice to Section 6.12, pay, discharge, settle or satisfy any pending or threatened Litigation, other than settlements that are solely for monetary damages of less than Fifty Thousand Dollars ($50,000) individually and Seventy Five Thousand Dollars ($75,000) in any geographic areathe aggregate;
(xv) conduct their respective cash management practices other than in the ordinary course of business consistent with past practice (including with respect to the payment of accounts receivable and accrued liabilities, collection of accounts receivable, pricing, credit practices and operation of cash management generally);
(xvi) enter into (A) change or revoke any Contracts material Tax election, (B) change any annual accounting period for capital expendituresTax purposes, exceeding $100,000,000 (C) change any method of accounting for Tax purposes or (D) settle any Tax Proceeding for an amount materially in excess of the aggregate in connection with any single project or group amount reserved for Taxes on the financial statements of related projects;the Company (it being agreed and understood that none of clauses (i) through (xv) nor clause (xvii) of this Section 6.2(b) shall apply to Tax compliance matters other than clause (xiv) insofar as it relates to this clause (xvi)); or
(xvii) open authorize any of, or reopen agree or commit to do any major production facility; and
(xviii) agreeof, in writing or otherwise, to take any of the foregoing actions. Nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the operations of the Company prior to the Closing, except as expressly set forth herein. Prior to the Closing, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the operations of the Company and its Subsidiaries.
(c) Except as required by this Agreement or as required by applicable Law, during the Interim Period, Parent shall not, and shall not permit any of its Subsidiaries to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a material portion of the assets of or equity in, any Person (a “Specified Acquisition”) or enter into any new line of business, if the entering into of a definitive agreement relating to or the consummation of such a Specified Acquisition or the entering into of such new line of business, as applicable, would reasonably be expected to (A) prevent, materially delay or materially impede the obtaining of, or adversely affect in any material respect the ability of Parent to procure, any authorizations, consents, orders, declarations or approvals of any Governmental Authority or the expiration or termination of any applicable waiting period necessary to consummate the Transactions or (B) materially increase the risk of any Governmental Authority entering an order, ruling, judgment or injunction prohibiting the consummation of the Transactions or (ii) take any action that is intended to or will materially delay or materially impede the ability of Parent to otherwise perform its covenants and agreements under this Agreement or to consummate the Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Battalion Oil Corp), Merger Agreement (Battalion Oil Corp)
Conduct of Business. From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms (a) Except the “Interim Period”), the Company shall, except as contemplated by this Agreement, set forth on Schedule 7.01 or consented to in writing by Acquiror (which consent shall not be unreasonably conditioned, withheld, delayed or denied), (i) otherwise expressly contemplated by use its commercially reasonable efforts to operate its business only in the ordinary course of business consistent with past practice; provided that, any action taken, or permitted under this Agreementomitted to be taken, including that relates to, or arises out of, any COVID-19 shall be deemed to be in the DIP Facility; ordinary course of business, so long as such actions or
(1) are reasonably designed and necessary to protect the health or welfare of the Company’s employees, directors, officers or agents and (2) comply with paragraph (ii) disclosed on of this Section 6.2 7.01, and in each case, the Company promptly notifies Acquiror of such actions and reasonably takes into account the reasonable requests of Acquiror in further acts or omissions of the Sellers’ Disclosure Schedule; Company with respect to such condition or conditions arising from COVID-19) and (iiiii) approved by use its commercially reasonable efforts to continue to accrue and collect accounts receivable, accrue and pay accounts payable and other expenses, establish reserves for uncollectible accounts and manage inventory in accordance with past custom and practice. Notwithstanding anything to the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Lawscontrary contained herein, from and after the date of this Agreement and until the earlier of the Closing and or the termination of this AgreementAgreement in accordance with its terms, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of BusinessCompany shall, (B) not take any action inconsistent with except as otherwise contemplated by this Agreement or with the consummation of the Closingany Transaction Agreements, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customersas required by applicable Law, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties as set forth on Schedule 7.01 or as consented to in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing by Acquiror (which consent shall not be unreasonably conditioned, withheld, conditioned delayed or delayeddenied), such Seller shall not, and shall not permit to do any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tofollowing:
(ia) take change or amend the Company Certificate of Incorporation, bylaws or other organizational documents of the Company, except as otherwise required by Law, except for any action with respect amendment to which any Seller has granted approval rights the Certificate of Incorporation in order to Sponsor under any Contract, including under facilitate the UST Credit Facilities, without obtaining closing of the prior approval of such action from SponsorMerger;
(iib) make, declare, set aside, establish a record date for or pay any dividend or distribution, other than any dividends or distributions from any wholly owned Subsidiary of the Company to the Company or any other wholly owned Subsidiary of the Company;
(c) enter into, assume, assign, partially or completely amend any material term of, modify any material term of or terminate (excluding any expiration in accordance with its terms or any modification or amendment that is not adverse to the Company) any Contract of a type required to be listed on Schedule 5.11(a), or any lease, sublease or license related to the Leased Real Property, other than entry into such agreements in the ordinary course of business;
(d) (i) issue, deliver, sell, transfer, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance place any Lien (other than a Permitted Lien) on any shares of capital stock or disposition of any Equity Interests other equity or voting securities of the Transferred Entities, Company or (ii) issue or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange any shares of capital stock or exercise) any such Equity Interestsother equity or voting securities of the Company;
(e) 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, rights or properties of the Company (other than Owned Intellectual Property), other than the sale or other disposition of assets or equipment deemed by the Company in its reasonable business judgment to be obsolete or no longer be material to the business of the Company, in each such case, in the ordinary course of business;
(f) (i) cancel or compromise any claim or Indebtedness owed to the Company, (ii) settle any pending or threatened Action, (A) if such settlement would require payment by the Company in an amount greater than $200,000, (B) to the extent such settlement includes an agreement to accept or concede injunctive relief, or (C) to the extent such settlement involves a Governmental Authority or alleged criminal wrongdoing, or (iii) declareagree to modify in any respect materially adverse to the Company any confidentiality or similar Contract to which the Company is a party;
(g) transfer, set aside sell, assign, license, sublicense, encumber, impair, abandon, permit to lapse or pay any dividend or make any distribution (whether in cashexpire, securities or other property or by allocation of additional Indebtedness dedicate to the public, cancel, subject to any Seller Lien, fail to diligently maintain, or otherwise dispose of any Key Subsidiary without receipt right, title or interest in any Owned Intellectual Property, other than non-exclusive licenses granted to customers in the ordinary course of fair value business;
(h) disclose any confidential information or trade secrets (other than in the ordinary course of business subject to appropriate written obligations with respect to confidentiality, non-use and non-disclosure) or source code to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased SubsidiariesPerson;
(ivi) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by Law or the terms of a Parent Employee any existing Company Benefit Plan and Policy (in effect on the date hereof and Plans set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (Schedule 5.13(a) as in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (Ai) increase the compensation or benefits of any Company Employee of Sellers or any Purchased Subsidiary (except for increases made in the ordinary course of business consistent with past practice , (ii) make any grant of any severance, retention or termination payment to any Person with an annual base salary of more than $100,000, (iii) hire additional officers or terminate existing officers, (iv) hire any employee of the Company or any other individual who is providing or will provide services to the Company other than any employee or individual with an annual base salary or wages in annual compensation of less than $100,000, (v) accelerate or commit to accelerate the Ordinary Course funding, payment or vesting of Business with respect any benefit or compensation to Employees who are not any current or former directors employee, director, officer or officers of Sellers other service provider, or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (Cvi) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Company Benefit Plan or any change to plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Benefit Plan if it were in existence as of the manner in which contributions date of this Agreement;
(j) 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 any substantial equity interest in, or by any other manner, any business or any corporation, partnership, limited liability company, joint venture, association or other entity or Person or division thereof;
(k) make any loans or advance any money or other property to any Benefit Plan are made Person, except for (A) advances in the ordinary course of business, consistent with past practice, to employees or officers of the Company for expenses not to exceed $10,000 individually or $50,000 in the aggregate, (B) prepayments and deposits paid to suppliers of the Company in the ordinary course of business and (C) trade credit extended to customers of the Company in the ordinary course of business;
(l) redeem, purchase or otherwise acquire, any shares of capital stock (or other equity interests) of the Company or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the basis on which such contributions are determined)occurrence of certain events) into or exchangeable for any shares of capital stock (or other equity interests) of the Company;
(m) adjust, except where split, combine, subdivide, recapitalize, reclassify or otherwise effect any such action would reduce Sellers’ costs change in respect of any shares of capital stock or Liabilities pursuant to such planother equity interests or securities of the Company;
(n) make any change in its customary accounting principles or methods of accounting materially affecting the reported consolidated assets, (D) grant any awards under any Benefit Plan (including any equity liabilities or equity-based awards)results of operations of the Company, (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part may be required by applicable Law, GAAP or regulatory guidelines;
(o) shorten or lengthen the customary payment cycles for any of a settlement of any pending Claim its payables or charge involving a Governmental Authority receivables or litigation otherwise engage in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion unusual efforts to accelerate the time collection of accounts receivable or unusually delay the payment of accounts payable or vesting participate in activity of the type sometimes referred to as “trade loading” or “channel stuffing” or any compensation other activity that reasonably could be expected to result in an increase, temporary or benefits under any Benefit Planotherwise, in the demand for the products offered by the Company before the Closing;
(xip) modify, amend, terminate adopt or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition a plan of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company (other than the Transactions);
(q) make, change or in revoke any other mannermaterial Tax election, the legal structure or ownership of any Key Subsidiary, or adopt or approve change any material accounting method with respect to Taxes, file any material amended Tax Return, file any material Tax Return prepared in a plan manner that is inconsistent with the past practices of the Company with respect to the treatment of items on such Tax Return, settle or compromise any material Tax liability, enter into any material closing agreement with respect to any Tax, surrender any right to claim a material refund of Taxes or consent to any extension or waiver of the foregoinglimitations period applicable to any material Tax claim or assessment, enter into any Tax sharing, Tax allocation, Tax assumption or Tax indemnification agreement , fail to pay any material Taxes when due (including estimated Taxes), or take any actions with respect to Taxes (including deductions or credits) pursuant to the CARES Act;
(xvr) directly or indirectly, incur, or modify in any material respect the terms of, any Indebtedness, or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person for Indebtedness;
(s) make any loans, advances or capital contributions to, or guarantees for the benefit of, or any investments in, any Person, other than the reimbursement of expenses of employees in the ordinary course of business;
(t) fail to maintain in full force and effect material insurance policies covering the Company and its properties, assets and businesses in a form and amount consistent with past practices;
(u) enter into any Contract that limits with any broker, finder, investment banker or otherwise restricts other Person under which such Person is or that would reasonably will be expected toentitled to any brokerage fee, after finders’ fee or other commission in connection with the Closing, restrict Transactions;
(v) enter into any transaction or limit amend in any material respect any existing agreement with any Person that, to the knowledge of the Company, is an Affiliate of the Company (Aexcluding ordinary course payments of annual compensation, provision of benefits or reimbursement of expenses in respect of members or stockholders who are officers or directors of the Company);
(w) Purchaser enter into any agreement that restricts the ability of the Company to (i) engage or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing compete in any line of business business, or in any geographic area;
(xviii) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group new line of related projectsbusiness;
(xviix) open terminate, amend, fail to review or reopen preserve or otherwise fail to maintain in full force and effect any major production facility; andmaterial Permit, except for amendments contemplated in the ordinary course of business;
(xviiiy) agreemake individual commitments for capital expenditures or construction of fixed assets in excess of $200,000; or
(z) enter into any agreement, in writing or otherwiseotherwise become obligated, to do or take any of the foregoing actionsaction prohibited under this Section 7.01.
Appears in 2 contracts
Samples: Merger Agreement (LMF Acquisition Opportunities Inc), Merger Agreement (LMF Acquisition Opportunities Inc)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated as permitted by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on as set forth in Section 6.2 6.2(a) of the Sellers’ Partnership Disclosure Schedule; , (iii) approved as required by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcyapplicable Laws, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from as provided in any changes to applicable Laws, from and after Partnership Material Contract in effect as of the date of this Agreement and until (including the earlier of the Closing and the termination of this Partnership Agreement, Sellers shall and shall cause each Purchased Subsidiary ) or (v) as consented to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing by Parent (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), during the period from the date of this Agreement until the Effective Time, each of the Partnership and the General Partner shall, and shall cause each of their respective Subsidiaries to, (A) conduct its business in the ordinary course of business consistent with past practice; provided, that this Section 6.2(a)(iv)(A) shall not prohibit the Partnership and its Subsidiaries from taking commercially reasonable actions outside of the ordinary course of business or not consistent with past practice in response to (x) changes or developments resulting or arising from the COVID-19 pandemic or (y) other changes or developments that would reasonably be expected to cause a reasonably prudent company similar to the Partnership to take commercially reasonable actions outside of the ordinary course of business consistent with past practice, (B) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees, if any, (C) use commercially reasonable efforts to keep in full force and effect all material Partnership Permits and all material insurance policies maintained by the Partnership and its Subsidiaries, other than changes to such Seller policies made in the ordinary course of business, and (D) use commercially reasonable efforts to comply in all material respects with all applicable Laws and the requirements of all Partnership Material Contracts. Without limiting the generality of the foregoing, except (i) as expressly permitted by this Agreement, (ii) as set forth in Section 6.2(a) of the Partnership Disclosure Schedule, (iii) as required by applicable Laws, (iv) as provided in any Partnership Material Contract in effect as of the date of this Agreement (including the Partnership Agreement) or (v) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, the Partnership and the General Partner shall not, and shall not permit any of the Key their respective Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contractamend the Organizational Documents (whether by merger, including under the UST Credit Facilitiesconsolidation, without obtaining the prior approval conversion or otherwise) of such action from Sponsorentity in any manner that would reasonably be expected to prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement;
(ii) declare, authorize, set aside or pay any distribution payable in cash, equity or property in respect of the Common Units, other than regular quarterly cash distributions on the Common Units not to exceed $0.1875 per Common Unit;
(iii) issue, sell, pledge, create an Encumbrance or otherwise dispose of of, grant, transfer, encumber, or authorize the issuance, sale, pledge, Encumbrance disposition, grant, transfer, lease, license, guarantee or disposition of encumbrance of, any Equity Interests equity securities of the Transferred EntitiesPartnership or any of its Subsidiaries, or grant securities convertible or exchangeable into or exercisable for any equity securities, or any options, warrants or other rights of any kind to purchase or obtain (including upon conversion, exchange or exercise) acquire any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, equity securities or such convertible or exchangeable securities or interests other property than issuances of Common Units upon vesting or by allocation settlement of additional Indebtedness to any Seller Partnership LTIP Awards that are outstanding on the date of this Agreement or any Key Subsidiary without receipt of fair value otherwise granted in compliance with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiariesthis Agreement;
(iv) directly make any capital expenditure or indirectlycapital expenditures (which shall include, purchaseany investments by contribution to capital, redeem property transfers, purchase of securities or otherwise acquire otherwise), except as set forth in the Partnership’s budgeted capital expenditure plan as of the date hereof or as may be reasonably required to conduct emergency operations, repairs or replacements on any Equity Interests well, pipeline, or any rights to acquire any Equity Interests of any Seller or Key Subsidiaryother facility;
(v) materially change make any of its financial accounting policies acquisition or procedures disposition, directly or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire indirectly (including by merger, consolidation, combination or acquisition of Equity Interests assets, tender or assets) exchange offer or otherwise), of any Person business or any corporation, partnership, limited liability company, joint venture or other business organization or division thereof or any property or assets of any other Person, other than immaterial acquisitions or dispositions in the ordinary course of business;
(vi) make any loans or advances to any Person (other than acquisitions of portfolio assets and acquisitions (x) to its employees in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, (y) loans and advances to the Partnership or any of its Subsidiaries and (z) trade credit granted in the ordinary course of business consistent with past practice);
(vii) incur, refinance or assume, or prepay or repurchase, any indebtedness for borrowed money or guarantee any such indebtedness for borrowed money or issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Partnership or any of its Subsidiaries, other than (w) borrowings under the Partnership Revolving Credit Facility, (x) borrowings from the Partnership or any of its Subsidiaries by the Partnership or any of its Subsidiaries, (y) repayments of borrowings from the Partnership or any of its Subsidiaries by the Partnership or any of its Subsidiaries and guarantees by the Partnership or any of its Subsidiaries of indebtedness of the Partnership or any of its Subsidiaries and (z) repayments or repurchases required pursuant to the terms of such indebtedness for borrowed money or debt securities;
(viii) split, combine, divide, subdivide, reverse split, reclassify, recapitalize or effect any other similar transaction with respect to any of such entity’s capital stock or other equity interests;
(ix) adopt a plan or agreement of complete or partial liquidation, dissolution or restructuring or a plan or agreement of reorganization under any bankruptcy or similar Law;
(x) waive, release, assign, settle or compromise any Proceeding, including any state or federal regulatory Proceeding seeking damages or injunction or other equitable relief, which waiver, release, assignment, settlement or compromise would reasonably be expected to result in a transaction Partnership Material Adverse Effect;
(xi) (t) change its fiscal year or any material method of Tax accounting, (u) make, change or revoke any material Tax election (including any entity classification election under Treasury Regulations Section 301.7701-3), (v) settle or compromise any liability for Taxes or any audit, examination or other legal Proceeding in respect of a material amount of Taxes, (w) file any material amended Tax Return, (x) enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any material Tax, (y) surrender any right to claim a material Tax refund or (z) consent to any extension of waiver of the statute of limitations period applicable to any material Tax claim or assessment;
(xii) make any material changes in financial accounting methods, principles or practices (or series change an annual accounting period), except insofar as may be required by a change in GAAP or applicable Law;
(xiii) engage in any activity or conduct its business in a manner that would cause less than 90% of related transactionsthe gross income of the Partnership for any calendar quarter since its formation and prior to the Effective Time to be treated as “qualifying income” within the meaning of Section 7704(d) where of the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000Code;
(xiv) alterexcept as required by applicable Law or the terms of any Partnership Benefit Plan existing and in effect on the date of this Agreement or as contemplated by this Agreement, (w) establish, adopt, materially amend or modify, commence participation in or terminate (or commit to establish, adopt, materially amend or modify, commence participation in or terminate) any material Partnership Benefit Plan (or any plan or arrangement that would be a material Partnership Benefit Plan if in effect as of the date of this Agreement), (x) materially increase in any manner the compensation, severance or benefits of any of the current or former directors, officers, employees, consultants, independent contractors or other service providers of the General Partner, the Partnership or any of their respective Subsidiaries, or enter into or amend any employment, severance, termination, retention or consulting agreement, in each case, other than in the ordinary course of business, (y) accelerate any material rights or benefits under any Partnership Benefit Plan, or (z) grant or amend any Partnership LTIP Awards or other equity awards, except in the ordinary course of business; or
(xv) agree, in writing or otherwise, to take any of the foregoing actions, or take any action or agree, in writing or otherwise, to take any action, including proposing or undertaking any merger, consolidation, acquisition or disposition, in each case, that would reasonably be expected to prohibit, prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement.
(b) Except (i) as permitted by this Agreement, (ii) as required by applicable Laws, (iii) as provided in any Parent Material Contract in effect as of the date of this Agreement or (iv) as consented to in writing by the Partnership (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, Parent shall, and shall cause Holdings and Merger Sub to, (A) conduct its business in the ordinary course of business consistent with past practice; provided, that this Section 6.2(b)(iv)(A) shall not prohibit Parent from taking commercially reasonable actions outside of the ordinary course of business or not consistent with past practice in response to (x) changes or developments resulting or arising from the COVID-19 pandemic or (y) other changes or developments that would reasonably be expected to cause a reasonably prudent company similar to Parent to take commercially reasonable actions outside of the ordinary course of business consistent with past practice, (B) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationship with it and retain the services of its present officers and key employees, (C) use commercially reasonable efforts to keep in full force and effect all material Permits of Parent and all material insurance policies maintained by the Parent, other than changes to such policies made in the ordinary course of business, and (D) use commercially reasonable efforts to comply in all material respects with all applicable Laws and the requirements of all Parent Material Contracts. Without limiting the generality of the foregoing, except (i) as expressly permitted by this Agreement, (ii) as required by applicable Laws, (iii) as provided in any Parent Material Contract in effect as of the date of this Agreement or (iv) as consented to in writing by the Partnership (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, Parent shall not, and shall not permit Holdings or Merger Sub to:
(i) amend Parent’s Organizational Documents (whether through by merger, consolidation, conversion or otherwise) in any manner that would reasonably be expected to (a) prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement or (b) adversely affect the terms of the Parent Common Stock in any material respect;
(ii) merge, consolidate or enter into any other business combination transaction or agreement with any Person in which such other Person is the surviving entity;
(iii) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization dissolution or in any other manner, the legal structure restructuring of Parent or ownership of any Key Subsidiary, or adopt or approve a plan with respect to or agreement of reorganization of Parent under any of the foregoingbankruptcy or similar Law;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviiiiv) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Noble Midstream Partners LP), Merger Agreement (Chevron Corp)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated as permitted by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on as set forth in Section 6.2 6.2(a) of the Sellers’ Partnership Disclosure Schedule; , (iii) approved as required by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcyapplicable Laws, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from as provided in any changes to applicable Laws, from and after Partnership Material Contract in effect as of the date of this Agreement and (including the Partnership Agreement) or (v) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the earlier Effective Time, each of the Closing Partnership and the termination of this AgreementGeneral Partner shall, Sellers shall and shall cause each Purchased Subsidiary of their respective Subsidiaries (except that with respect to each Non-Operated Joint Venture such obligation shall be limited to exercising the governance rights that the Partnership holds in such Non-Operated Joint Venture in accordance with this Section 6.2(a)) to: (A) conduct their operations its business in the Ordinary Course ordinary course of Businessbusiness in all material respects, provided, that this clause (A) shall not prohibit the Partnership and the other Group Members from taking commercially reasonable actions outside of the ordinary course of business in response to (x) changes or developments resulting or arising from COVID-19 or (y) other changes or developments that would reasonably be expected to cause a reasonably prudent company similar to the Partnership to take commercially reasonable actions outside of the ordinary course of business; (B) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees, if any; (C) use commercially reasonable efforts to keep in full force and effect all material Partnership Permits and all material insurance policies maintained by the Group Members, other than changes to such policies made in the ordinary course of business; and (D) use commercially reasonable efforts to comply in all material respects with all applicable Laws and the requirements of all Partnership Material Contracts; provided, that no action or inaction by the Partnership, the General Partner, or their respective Subsidiaries with respect to the matters specifically addressed by any provision of this Section 6.2(a) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provision of this Section 6.2(a). During the period from the date of this Agreement until the Effective Time, if permitted by applicable Laws and subject to Section 6.10, the General Partner shall cause the Partnership and OpCo to declare and pay regular quarterly cash distributions, determined in each case in a manner consistent with past practice; provided, that (if and to the extent permitted by applicable Laws) in no event shall the regular quarterly cash distribution declared or paid by the Partnership to the holders of Common Units be less than $0.30 per Common Unit. Without limiting the generality of the foregoing, except (i) as expressly permitted by this Agreement, (ii) as set forth in Section 6.2(a) of the Partnership Disclosure Schedule, (iii) as required by applicable Laws, (iv) as provided in any Partnership Material Contract in effect as of the date of this Agreement (including the Partnership Agreement), or (v) as consented to in writing by Parent (which consent shall not take be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, the Partnership and the General Partner shall not, and shall not permit any action inconsistent of their respective Subsidiaries (except that with respect to each Non-Operated Joint Venture such obligation shall be limited to exercising the governance rights that the Partnership holds in such Non-Operated Joint Venture in accordance with this Agreement Section 6.2(a)) to:
(i) amend the Organizational Documents (whether by merger, consolidation, conversion or with otherwise) of such entity in any manner that would reasonably be expected to prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the ClosingMerger or the other transactions contemplated by this Agreement;
(ii) with respect to the Partnership and OpCo only, declare, authorize, set aside or pay any distribution payable in cash, equity or property in respect of their respective equity interests, other than as contemplated by Section 6.2(a) and Section 6.10;
(iii) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any equity securities of any Group Member, or securities convertible or exchangeable into or exercisable for any equity securities, or any options, warrants or other rights of any kind to acquire any equity securities or such convertible or exchangeable securities or interests other than issuances of Common Units upon vesting or settlement of Partnership Phantom Units that are outstanding on the date of this Agreement or otherwise granted in compliance with this Agreement;
(iv) split, combine, divide, subdivide, reverse split, reclassify, recapitalize or effect any other similar transaction with respect to any of such entity’s capital stock or other equity interests;
(v) adopt a plan or agreement of complete or partial liquidation, dissolution or restructuring or a plan or agreement of reorganization under any bankruptcy or similar Law;
(vi) waive, release, assign, settle or compromise any Proceeding, including any state or federal regulatory Proceeding seeking damages or injunction or other equitable relief, which waiver, release, assignment, settlement or compromise would reasonably be expected to result in a Partnership Material Adverse Effect;
(vii) make any material changes in financial accounting methods, principles or practices (or change an annual accounting period), except insofar as may be required by a change in GAAP;
(viii) except as required by the terms of any Partnership Benefit Plan existing and in effect on the date of this Agreement or as contemplated by this Agreement, (Cw) use reasonable best efforts establish, adopt, materially amend or modify, commence participation in or terminate (or commit to preserve establish, adopt, materially amend or modify, commence participation in or terminate) any material Partnership Benefit Plan (or any plan or arrangement that would be a material Partnership Benefit Plan if in effect as of the date of this Agreement), (x) materially increase in any manner the compensation, severance or benefits of any of the current or former directors, officers, employees, consultants, independent contractors or other service providers of the General Partner, the Partnership or any of their respective Subsidiaries, or enter into or amend any employment, severance, termination, retention or consulting agreement, in each case, other than in the Ordinary Course ordinary course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with thembusiness, (Dy) not accelerate any material rights or benefits under any Partnership Benefit Plan, or (z) grant or materially amend any Partnership LTIP Awards or other equity awards, except in the ordinary course of business; or
(ix) agree, in writing or otherwise, to take any of the foregoing actions, or take any action or agree, in writing or otherwise, to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prohibit, prevent or in any material respect hinder, impede or delay the Closingability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement.
(b) Subject to the exceptions contained in clauses Except (i) through as permitted by this Agreement, (ivii) as set forth in Section 6.2(b) of Section 6.2(a)the Parent Disclosure Schedule, each Seller agrees that(ii) as required by applicable Laws, from and after (iii) as provided in any Parent Material Contract in effect as of the date of this Agreement and until or (iv) as consented to in writing by the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser Partnership (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), such Seller during the period from the date of this Agreement until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct its businesses in a manner not involving the entry by Parent or its Subsidiaries into lines of business that are materially different than the lines of business of Parent and its Subsidiaries on the date of this Agreement. Without limiting the generality of the foregoing, except (i) as expressly permitted by this Agreement, (ii) as required by applicable Laws, (iii) as provided in any Parent Material Contract in effect as of the date of this Agreement, or (iv) as consented to in writing by the Partnership (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, Parent shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) other Parent Parties to:
(i) take amend Parent’s Organizational Documents (whether by merger, consolidation, conversion or otherwise) in any action manner that would reasonably be expected to (A) prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement or (B) adversely affect the rights associated with respect to which the Parent Common Stock in any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsormaterial respect;
(ii) issuecause Parent to merge, sell, pledge, create an Encumbrance consolidate or otherwise dispose of enter into any other business combination transaction or authorize agreement with any Person in which such other Person is the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interestssurviving entity;
(iii) adopt a plan or agreement of complete or partial liquidation, dissolution or restructuring of Parent or a plan or agreement of reorganization of Parent under any bankruptcy or similar Law, or take any action to cause the liquidation, winding up or dissolution of Merger Sub;
(iv) split, combine, divide, subdivide, reverse split, reclassify, recapitalize, or effect any similar transaction with respect to any Parent’s capital stock or other equity interests;
(v) declare, authorize, set aside or pay any dividend or make any distribution (whether payable in cash, securities stock or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with in respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller of Parent’s capital stock, other than regular quarterly base and variable cash dividends on the Parent Common Stock consistent with Parent’s then-publicly disclosed capital return policy and other than dividends or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, distributions with a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of record date after the filing of the Bankruptcy Cases;Effective Time; or
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Rattler Midstream Lp), Merger Agreement (Rattler Midstream Lp)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including During the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and hereof until the earlier of the Closing and the termination of this AgreementAgreement pursuant to Article 9, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with except as otherwise contemplated by this Agreement or with the consummation of the Closingas Purchaser otherwise agrees in writing in advance, (C) Seller shall use its commercially reasonable best efforts to preserve intact the Purchased Assets as in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after existence on the date of this Agreement Agreement. By way of amplification and until the earlier of the Closing and the termination of this Agreement, without not in any way limiting the prior written sentence, during the period from the date hereof to the Closing, except as otherwise contemplated by this Agreement or as Purchaser shall otherwise consent of Purchaser (which consent shall not be unreasonably withheld, conditioned withheld or delayed), such Seller shall not, and shall cause each of its Subsidiaries not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(ia) take incur, create or assume any action with respect to which Lien (other than Permitted Liens) on any Seller has granted approval rights to Sponsor under any Contract, including under of the UST Credit Facilities, without obtaining the prior approval of such action from SponsorPurchased Assets;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(viib) sell, pledge, lease, transferlicense, assign transfer or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2)Assets;
(viiic) (A) incur enter into any contract, arrangement or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by commitment related to the Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the SubsidiariesAssets;
(ixd) discharge dispose of or satisfy permit to lapse any Indebtedness in excess of $100,000,000 other than rights in, to or for the discharge or satisfaction use of any Indebtedness when due in accordance with its originally scheduled termsProgram Technology, or disclose to any Person not an employee any Program Technology not heretofore a matter of public knowledge, except pursuant to judicial or administrative process;
(xe) settle any claims, actions, arbitrations, disputes or other than as is required Proceedings (i) that would impair the ability of Seller or any of its Subsidiaries to consummate the transactions contemplated by this Agreement and the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Registration Rights Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (Gii) exercise any discretion to accelerate affecting the time of payment or vesting of any compensation or benefits under any Benefit PlanPurchased Assets;
(xif) modify, amend, terminate do any other act which would cause any representation or waive any rights under any Affiliate Contract warranty of Seller in this Agreement to be or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) 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 a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;material respect at such time; and
(xiig) authorize or enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination agreement or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan commitment with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to. In addition, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, Seller shall continue to take any commercially reasonable and customary measures and precautions to protect and maintain the confidentiality of the foregoing actionsProgram Know-How, consistent with Seller’s past practice.
Appears in 2 contracts
Samples: License, Development and Commercialization Agreement (MEI Pharma, Inc.), License, Development and Commercialization Agreement (MEI Pharma, Inc.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including During the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and continuing until the earlier of the Closing and the termination of this AgreementAgreement pursuant to its terms or the Effective Time, Sellers Click2learn (which for the purposes of this Article IV shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers include Click2learn and each of their Subsidiaries with their respective customersits Subsidiaries) and Docent (which for the purposes of this Article IV shall include Docent and each of its Subsidiaries) agree, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses except (i) through (iv) in the case of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier Click2learn as provided in Article IV of the Closing Click2learn Schedules and in the termination case of this AgreementDocent as provided in Article IV of the Docent Schedules, or (ii) to the extent that the other party shall otherwise consent in writing, to carry on its business diligently and in accordance with good commercial practice and to carry on its business in the ordinary course, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, 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 use its commercially reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep 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 addition, except in the case of Click2learn as provided in Article IV of the Click2learn Schedules and in the case of Docent as provided in Article IV of the Docent Schedules, without the prior written consent of Purchaser (which consent the other, neither Click2learn nor Docent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit do any of the Key following, and neither Click2learn nor Docent shall permit its Subsidiaries (and in to do any of the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) tofollowing:
(ia) take any action with respect Except as required by law or pursuant to which any Seller has granted approval rights to Sponsor under any Contractthe terms of a Click2learn Plan or a Docent Plan, including under as the UST Credit Facilitiescase may be, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests in effect as of the Transferred Entitiesdate hereof, waive any stock repurchase rights, accelerate, amend or change the period of exercisability of options or restricted stock, or grant any optionsreprice, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchaseoptions granted under any employee, redeem consultant or otherwise acquire director stock plans or authorize cash payments in exchange for any Equity Interests or options granted under any rights to acquire any Equity Interests of any Seller or Key Subsidiarysuch plans;
(vb) materially change Enter into any material partnership arrangements, joint development agreements or strategic alliances other than in the ordinary course of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Casesbusiness consistent with past practice;
(vic) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant Grant any severance or termination pay to any Employee officer or employee in excess of Sellers $25,000 to any individual and $100,000 in the aggregate, except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing to the other, or adopt any Purchased Subsidiary except for new severance plan or termination pay provided under amend or modify or alter in any Parent Employee Benefit Plan and Policy manner any severance plan, agreement or as arrangement existing on the result date hereof;
(d) Other than in the ordinary course of a settlement of business, transfer or license to any pending Claim person or charge involving a Governmental Authority entity or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter intootherwise extend, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) modify in any material respect in a manner that is adverse any rights to the Click2learn Intellectual Property or the Docent Intellectual Property, as the case may be, or enter into grants to transfer or license to any Seller that is a party theretoperson future patent rights, other than in the Ordinary Course ordinary course of Businessbusiness, provided, however, that no grant or transfer of a source code license shall be considered as occurring in the ordinary course of business;
(xiie) enter into Declare, set aside or pay any Seller Material Contract dividends on or make any other than as contemplated by Section 6.7distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(xiiif) acquire (including by mergerPurchase, consolidationredeem or otherwise acquire, combination directly or acquisition indirectly, any shares of Equity Interests capital stock of Click2learn or assets) its Subsidiaries, or Docent or its Subsidiaries, as the case may be, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any Person employee pursuant to stock option or business or division thereof (other than acquisitions of portfolio assets and acquisitions purchase agreements in effect on the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000date hereof;
(xivg) alterIssue, whether through deliver, sell, authorize, pledge or otherwise encumber or propose any of the foregoing with respect to 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 (i) the issuance, delivery and/or sale of shares of Click2learn Common Stock or Docent Common Stock, as the case may be, pursuant to the exercise of stock options therefor outstanding as of the date of this Agreement, (ii) the granting of options to purchase shares of Click2learn Common Stock or Docent Common Stock, as the case may be, to be granted at fair market value in the ordinary course of business, consistent with past practice and in accordance with existing stock option plans in an amount not to exceed options to purchase 250,000 shares in the aggregate, (iii) shares of Click2learn Common Stock or Docent Common Stock, as the case may be, issuable upon the exercise of the options referred to in clause (ii) or options or warrants outstanding on the date of this Agreement, and (iv) shares of Click2learn Common Stock or Docent Common Stock, as the case may be, issuable to participants in the Docent ESPP or the Click2learn ESPP consistent with the terms thereof;
(h) Cause, permit or propose any amendments to any charter document or Bylaw (or similar governing instruments of any Subsidiaries);
(i) 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, 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 Click2learn or Docent;
(j) Adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization recapitalization or other reorganization;
(k) Sell, lease, license, encumber or otherwise dispose of any properties or assets except sales of inventory in the ordinary course of business consistent with past practice, except for the sale, lease or disposition (other than through licensing) of property or assets which are not material, individually or in the aggregate, to the business of Click2learn or Docent, as the case may be;
(l) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other mannerrights to acquire any debt securities of Click2learn or Docent, as the legal structure case may be, enter into any “keep well” or ownership other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoingforegoing other than (i) in connection with the financing of ordinary course trade payables consistent with past practice or (ii) pursuant to existing credit facilities in the ordinary course of business;
(xvm) Adopt or amend any employee benefit plan or employee stock purchase or employee stock option plan, or enter into any Contract that limits employment contract or otherwise restricts collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable “at will”), pay any special bonus or that would reasonably be expected tospecial remuneration to any director or employee other than in the ordinary course of business consistent with past practice, after or increase the Closingsalaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, restrict officers, employees or limit consultants;
(n) Make any individual or series of related payments outside of the ordinary course of business in excess of $100,000;
(o) Except in the ordinary course of business consistent with past practice, modify, amend or terminate any material respect (A) Purchaser contract or agreement to which Click2learn or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser Docent or any successor theretoof its Subsidiaries, as the case may be, is a party or waive, delay the exercise of, release or assign any material rights or claims thereunder;
(p) Except in the ordinary course of business, enter into or materially modify any contracts, agreements or obligations relating to the distribution, sale, license or marketing by third parties of Click2learn’s or Docent’s products, as the case may be, or products licensed by Click2learn or Docent, as the case may be;
(q) Revalue any of each its assets or, except as required by GAAP or the SEC, make any change in accounting methods, principles or practices;
(r) Incur or enter into any agreement or commitment obligating the party or its Subsidiary to make a payment or undertake an obligation outside the ordinary course of clause business in excess of $100,000 individually;
(As) Engage in any action that could reasonably be expected to cause the Merger to fail to qualify as a “reorganization” under Section 368(a) of the Code or a tax-free exchange under Section 351 of the Code, whether or not otherwise permitted by the provisions of this Article IV;
(Bt) Make any material tax election, settle or compromise any material tax liability or amend any material Tax Return;
(u) Hire any individual employee or employees except in the ordinary course of business consistent with past practice in the past year;
(v) Pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), from engaging other than payment, discharge or competing satisfaction in any line the ordinary course of business or in any geographic areaexcess of $25,000 individually or $100,000 in the aggregate;
(xviw) enter Make any grant of exclusive rights to any third party; or
(x) Enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project legally binding agreement or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, otherwise to take any of the foregoing actionsactions described in Section 4.1 (a) through (w) above.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Click2learn Inc/De/), Agreement and Plan of Reorganization (Docent Inc)
Conduct of Business. Seller agrees that, between the date hereof and the Closing, except as set forth in Schedule 5.1 or as expressly provided by any other provision of this Agreement, or unless Buyer shall otherwise agree in advance in writing (a) Except as which agreement shall not be unreasonably withheld, delayed or conditioned), Seller shall, and shall cause each of its Subsidiaries to, (i) otherwise conduct its operations in all material respects only in the Ordinary Course of the Subject Business, (ii) pay or perform the Liabilities of the Subject Business when due, (iii) use its reasonable best efforts to keep available the services of the key employees and key consultants of Seller and each of its Subsidiaries and to preserve the current relationships with customers, suppliers and other Persons as are reasonably necessary in order to preserve substantially intact the Subject Business. In addition, without limiting the foregoing, except (x) as set forth in Schedule 5.1, or (y) as expressly contemplated provided by or permitted under any other provision of this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 Seller shall not and shall not permit any of the Sellersits Subsidiaries, nor any of its or its Subsidiaries’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (officers, directors or employees, Affiliates or any other court investment banker, financial advisor, attorney, accountant or other Governmental Authority in connection with representative retained by it or any other bankruptcyof its respective Subsidiaries, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or to (iv) unless required by or resulting from any changes to applicable LawsApplicable Law), from and after between the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts directly or indirectly, do, or agree to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customersdo, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, following without the prior written consent of Purchaser the Buyer (which consent shall not be unreasonably withheld, conditioned delayed or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:conditioned):
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(viia) sell, pledge, leasedispose of, transfer, assign lease, license, or dispose encumber, or authorize the sale, pledge, disposition, transfer, lease, license, or encumbrance of, any of any the Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each caseAssets, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2)business;
(viiib) (A) incur or assume enter into any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines agreement with respect to the voting of credit (including through the incurrence capital stock of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the SubsidiariesSeller;
(ixc) discharge increase the compensation, severance benefits or satisfy perquisites payable or to become payable to any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled termsHired Employee;
(xd) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter intomodify, amend or terminate terminate, or waive, release or assign any Benefit Plan (including any change to any actuarial material rights or other assumption used to calculate funding obligations claims with respect to any Benefit Plan confidentiality or any change standstill agreement to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in and which relates to a business combination involving the Ordinary Course of Subject Business;
(xiie) take any action that is intended to result in any of the conditions to the transactions contemplated hereby set forth in Sections 6.1 and 6.2 not being satisfied;
(f) take any action that is reasonably likely to cause a delay in the convening of the Seller Stockholder Meeting; or
(g) authorize or enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination agreement or acquisition of Equity Interests or assets) otherwise make any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect commitment to do any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Bio Key International Inc), Asset Purchase Agreement (Bio Key International Inc)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated consented to or approved by each of the other Parties in writing or as permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination terms of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller AHC shall not, and shall not permit any of the Key their Subsidiaries to, take (and in the case of clauses (i), (ix), (xiiior omit to take) or agree (xvi)in writing or otherwise) to take (or omit to take) any action which would prevent or materially impair the ability of AHC to consummate the transactions contemplated by this Agreement, including, without limitation, actions that would be reasonably likely to prevent or materially impair AHC from satisfying all of its covenants, obligations and agreements contained in this Agreement or from obtaining the receipt of any consent, registration, approval, permit or authorization, that is necessary in connection with the execution and delivery of this Agreement, the applicable Related Agreements (for the applicable agreement) and the consummation of the transactions contemplated hereby and thereby.
(b) Except as consented to or approved by each of the other Parties in writing or as permitted under the terms of this Agreement, a Legacy Owner shall not take (or omit to take) or agree (in writing or otherwise) to take (or omit to take) any action which would prevent or materially impair the ability of such Legacy Owner to consummate the transactions contemplated by this Agreement, including, without limitation, actions that would be reasonably likely to prevent or materially impair such Legacy Owner from satisfying all of its covenants, obligations and agreements contained in this Agreement or from obtaining the receipt of any consent, registration, approval, permit or authorization, that is necessary in connection with the execution and delivery of this Agreement, the applicable Related Agreements (for the applicable phase) and the consummation of the transactions contemplated hereby and thereby.
(c) Except as consented to or approved by each of the other Parties in writing or as permitted under the terms of this Agreement, a Quartz Parent Entity shall not, and shall not permit any Purchased Subsidiary) of their Subsidiaries to:
(i) , take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into omit to take) or agree (in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently writing or otherwise) for to take (or omit to take) any action which would prevent or materially impair the ability of such Quartz Parent Entity to consummate the transactions contemplated by this Agreement, including, without limitation, actions that would be reasonably likely to prevent or materially impair such Quartz Parent Entity from satisfying all of its covenants, obligations and agreements contained in this Agreement or from obtaining the receipt of any other Personconsent, except for Indebtedness for borrowed money among any Seller and Subsidiary registration, approval, permit or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness authorization, that is necessary in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent connection with the expiration execution and delivery of a Collective Bargaining this Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, Related Agreements (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (Fapplicable phase) forgive any loans to Employees and the consummation of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;transactions contemplated hereby and thereby.
(xid) modify, amend, terminate Nothing in this Section 6.1 is intended to cause or waive require any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser Party or any of its Subsidiaries or to cede control to any successor thereto or (B) any Affiliates other Party of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line its ordinary course of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsand commercial decisions.
Appears in 2 contracts
Samples: Exchange Agreement, Exchange Agreement
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, During the period on and from the Effective Date through and including the DIP Facility; (ii) disclosed on Section 6.2 Closing Date, Seller will use the Assets only in the ordinary course consistent with past practices, unless Buyer shall otherwise agree in writing. Without limiting the generality of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcyforegoing, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) towill:
(i) Maintain the Retained Contracts in good standing and not take any action with respect actions (or omit or fail to take any actions) which would result in a breach of any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;Retained Contracts; and
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;Refrain from:
(iii1) declareentering into, set aside amending, modifying, terminating (partially or pay completely), granting any dividend waiver under or make giving any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value consent with respect to any Equity Interest of Seller Assumed Contract, Retained Contract or any Key Subsidiary), except for dividends and distributions among Registration which adversely affects any right of Buyer without the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result written consent of the filing Buyer, which consent will not be unreasonably withheld or delayed if the adverse effect is immaterial, and for purposes of clarity, Buyer hereby agrees that Seller may amend the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence Letter Agreement dated as of May 15, 2007 between Seller and Clinic Barcelona Hospital Universitari, to add countries to the date hereof Territory (or entered into in compliance with this Section 6.2as defined therein);
(viii2) violating, breaching or defaulting under, in any material respect, or taking or failing to take any action that (Awith or without notice or lapse of time or both) incur would constitute a material violation or assume breach of, or default under, any Indebtedness for borrowed money term or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations provision of any other Person, except for Indebtedness for borrowed money among Assumed Contract or any Seller and Subsidiary or among the SubsidiariesRegistration;
(ix3) discharge waiving any right of Seller under any Liability of or satisfy any Indebtedness owing to Seller in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent connection with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party theretoAssets, other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(xii4) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or engaging in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan transaction with respect to the Assets with any officer, director or Affiliate of Seller, either outside the ordinary course of business consistent with past practice or other than on an arm’s length basis; and
(5) entering into any agreement to do or engage in any of the foregoing;.
(xviii) enter into As of the Closing Date, Seller represents and warrants to Buyer that during the period from the Original Effective Date through the Closing Date Seller has not taken any Contract that limits action, or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, failed to take any action, that would have been a violation of the foregoing actionsprovisions of this Section 8.2 had they occurred after the Original Effective Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Ikaria, Inc.), Asset Purchase Agreement (Ikaria, Inc.)
Conduct of Business. (a) Except as From the date hereof until Closing, Seller shall (i) otherwise expressly contemplated by or permitted under this Agreementoperate the Restaurants as they are currently being operated and in the ordinary course of business and in compliance with all terms and conditions of the Franchise Agreements, including using commercially reasonable efforts in keeping with Seller's historical practices to preserve and maintain the DIP Facility; services of its employees and its relationships with suppliers and customers, (ii) disclosed on Section 6.2 of pay all bills and debts incurred by it related to the Sellers’ Disclosure Schedule; Business promptly as they become due, and (iii) approved by consult in advance with Purchaser on all decisions outside the Bankruptcy Court (ordinary course of business relating to the Assets or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the ClosingRestaurants.
(b) Subject In particular, and without limiting the foregoing, with respect to the exceptions contained in clauses (i) through (iv) of Section 6.2(a)Business, each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) toshall:
(i) take any action maintain the Assets consistent with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorpast practices and in good operating condition consistent with their age;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights continue to purchase or obtain (including upon conversion, exchange or exercise) any and maintain inventories for each Restaurant in such Equity Interestsquantities and quality as necessary to operate the Restaurants in accordance with Seller's historical practice;
(iii) declarecontinue to operate the Restaurants in accordance with all material applicable local, set aside or pay any dividend or make any distribution state, and federal laws and regulations; and
(whether in cashc) Further, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to the Restaurants, Seller shall not, without the express prior written approval of Purchaser:
(i) change in any Equity Interest material manner the ownership of Seller the Assets; or directly or indirectly, solicit or entertain any Key Subsidiary)offer from or negotiate with or in any manner engage, discuss, accept or consider any proposal from any other person relating to the acquisition of the Assets;
(ii) increase the rate of compensation to ADI Personnel beyond the usual and customary annual merit increases or bonuses under established compensation plans, except for dividends and distributions among payments under the Purchased Subsidiariesstay-bonus plan which will be paid within six weeks after the end of the month in which the Closing occurs;
(iii) mortgage, pledge, or subject to lien (except in connection with development efforts pursuant to Section 4.7 in the ordinary course of business) any of the Assets;
(iv) directly or indirectly, purchase, redeem sell or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests dispose of any Seller or Key SubsidiaryAsset except in the ordinary course of business;
(v) materially change enter into any Material Contract except in the ordinary course of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Casesbusiness;
(vi) adopt other than in the ordinary course of business, cancel or terminate or consent to or accept any amendments to its Organizational Documents cancellation or permit the adoption termination of any amendment Material Contract or Lease, amend or otherwise modify any of the Organizational Documents its material terms or waive any breach of any Key Subsidiary of its material terms or effect a split, combination provisions or reclassification take any other action in connection with any Material Contract or other adjustment Lease that would materially impair the interests or rights of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;Seller to be transferred to Purchaser hereunder.
(vii) sell, pledge, lease, transfer, assign Cancel or dispose of any Purchased Asset terminate or permit to be canceled or terminated its current insurance (or reinsurance) policies or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (coverage thereunder to lapse, unless simultaneously with such termination, cancellation or entered into in compliance with this Section 6.2);
(viii) (A) incur lapse, replacement policies providing coverage equal to or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through greater than the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers coverage under the DIP Facility or (B) assumecanceled, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiaryterminated, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit lapsed policies are in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsfull force and effect.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Apple South Inc), Asset Purchase Agreement (Apple South Inc)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated required under applicable Law or by any Governmental Authority or permitted under this Agreement, including unless the DIP Facility; (ii) disclosed on Section 6.2 Board of Directors of ENP GP is advised by counsel that doing so would be a breach of its fiduciary duty to the limited partners of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (Partnership, or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained extent Buyer otherwise consents in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the Execution Date to the Closing Date, GP Holdings shall take no action to prevent ENP GP or the Partnership Entities from:
(i) conducting their activities in the ordinary course of business consistent with past practice;
(ii) using commercially reasonable efforts to preserve intact their goodwill and relationships with customers, suppliers and others having business dealings with them with respect thereto;
(iii) complying in all material respects with all applicable Laws relating to them;
(iv) using commercially reasonable efforts to maintain in full force without interruption their present insurance policies, or comparable insurance coverage; and
(v) promptly notifying Buyer of any material change in the condition or business or any material litigation or proceedings (including arbitration and other dispute resolution proceedings) or material government complaints, investigations, inquiries or hearings (or communications indicating that the same may be contemplated) or any material developments in any such Seller shall notlitigation, proceedings, complaints, investigations, inquiries or hearings.
(b) Without limiting the generality of the foregoing, and except as contemplated by this Agreement, or as required by applicable Law or by any Governmental Authority, prior to the Closing Date, without the prior written consent of Buyer (which consent shall not permit any be unreasonably withheld), GP Holdings shall not cause ENP GP or the Partnership Entities (unless the Board of Directors of ENP GP is advised by counsel that failure to do so would be a breach of its fiduciary duty to the limited partners of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased SubsidiaryPartnership) to:
(i) take modify, amend or voluntarily terminate, prior to the expiration date thereof, any action Material Contract or waive any material default by, or release, settle or compromise any material claim against, any other party thereto, other than as may be required in connection with respect the Selling Parties’ obligations to which any Seller has granted approval rights to Sponsor Buyer under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorthis Agreement;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of make any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights change in their Organizational Documents that would be materially adverse to purchase or obtain (including upon conversion, exchange or exercise) any such Equity InterestsBuyer;
(iii) declare, set aside or pay any dividend or make any distribution (whether material change in cashtheir Tax methods, securities principles or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiarieselections;
(iv) directly materially increase the compensation or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests benefits (except for normal increases in the ordinary course of business consistent with past practice) of any Seller director, officer or Key Subsidiaryemployee of any Partnership Entity or (B) establish any new employee benefit plan, contract or arrangement for employees of any such entities;
(v) materially change enter into any of its financial accounting policies joint venture or procedures or any of its methods of reporting income, deductions or similar arrangement with a third party other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of than in the filing of the Bankruptcy Casesordinary course;
(vi) adopt settle any amendments claims, demands, lawsuits or state or federal regulatory proceedings for damages to its Organizational Documents the extent such settlements in the aggregate assess damages in excess of $5,000,000 (other than claims, demands, lawsuits or permit proceedings to the adoption extent insured (net of deductibles), reserved against in the Partnership's financial statements or covered by an indemnity obligation not subject to dispute or adjustment from a solvent indemnitor) or (B) settle any amendment of the Organizational Documents of any Key Subsidiary claims, demands, lawsuits or effect a split, combination state or reclassification federal regulatory proceedings seeking an injunction or other adjustment of Equity Interests of any Purchased Subsidiary equitable relief where such settlements would have or would reasonably be expected to have a recapitalization thereof;Material Adverse Effect; or
(vii) sell, pledge, lease, transfer, assign or dispose of make any Purchased Asset or permit any Purchased Asset material change to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries its financial reporting and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) accounting methods other than as is required by the terms of a Parent Employee Benefit Plan and Policy (change in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsGAAP.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Vanguard Natural Resources, LLC)
Conduct of Business. The Borrower and each other member of the Borrower Affiliated Group shall:
(a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from duly observe and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and comply in all material respects with all applicable laws and requirements of any governmental authorities relative to its corporate existence, rights and franchises, to the present relationships conduct of Sellers its business and each of their Subsidiaries with their respective customersto its property and assets (including without limitation all Environmental Laws and ERISA), suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations shall maintain and warranties set forth keep in ARTICLE IV to be untrue full force and effect all licenses and permits necessary in any material respect as to the proper conduct of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.its business;
(b) Subject maintain its corporate existence (except as otherwise permitted by Section 6.6) and maintain its jurisdiction of organization as disclosed in the Security Agreement;
(c) remain engaged in substantially the same fields of business as those in which it is now engaged (and reasonable extensions or expansions thereof), except that the Borrower or any other member of the Borrower Affiliated Group may withdraw from any business activity which its Board of Directors reasonably deems unprofitable or unsound, provided that promptly after such withdrawal, the Borrower shall provide the Lender with written notice thereof; and
(d) at least 10 Business Days prior to forming any Subsidiary, deliver to the exceptions contained Lender the Borrower’s agreement, and immediately upon formation, such Subsidiary’s agreement, in clauses (i) through (iv) of Section 6.2(a)each case reasonably satisfactory to counsel for the Lender, each Seller agrees that, from and after that the date of this Agreement and until the earlier Subsidiary shall be a member of the Closing and the termination of this AgreementBorrower Affiliated Group, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including Subsidiary formed under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests Laws of the Transferred EntitiesUnited States, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance’s agreement, in each case, except in the Ordinary Course of Business or pursuant case reasonably satisfactory to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) counsel for the obligations of any other PersonLender, except for Indebtedness for borrowed money among any Seller and that the Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required shall be bound by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining this Agreement, the Settlement Agreement, other Loan Documents and the UAW Retiree Settlement Agreement or related documents and instruments as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers a Guarantor hereunder and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsthereunder.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Open Link Financial, Inc.), Revolving Credit and Term Loan Agreement (Open Link Financial, Inc.)
Conduct of Business. (a) Except as Prior to the Closing, Sellers shall: (i) otherwise expressly contemplated by or permitted under this Agreement, including in all material respects operate the DIP FacilityBusiness as presently operated and only in the ordinary course and consistent with past practice; (ii) disclosed on Section 6.2 use commercially reasonable efforts to preserve the value of the Sellers’ Disclosure ScheduleBusiness; and (iii) approved by the Bankruptcy Court (or any use commercially reasonable efforts to preserve their relationships with and goodwill of their Producers, customers, suppliers, employees and other court or other Governmental Authority Persons having business dealings with Sellers in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to Without limiting the exceptions contained in clauses (i) through (iv) generality of Section 6.2(a5.01(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of except as otherwise expressly provided in this Agreement, and except as set forth on Schedule 5.01(A) hereto, Sellers will not, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) toPurchaser:
(i) take any action enter into a material contract with respect to which any the Business that would require annual payments by either Seller has granted approval rights to Sponsor under any Contractof $150,000 or more, including under other than in the UST Credit Facilities, without obtaining the prior approval ordinary course of such action from Sponsorbusiness consistent with past practice;
(ii) issue, sell, pledge, create an Encumbrance acquire or otherwise dispose of any asset that would constitute a Transferred Asset if owned by either Seller at Closing, other than acquisitions or authorize dispositions in the issuance, sale, pledge, Encumbrance or disposition ordinary course of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interestsbusiness consistent with past practice;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness material changes to any Seller of the accounting principles, practices, methods or policies (including but not limited to any Key Subsidiary without receipt of fair value reserving methods, practices or policies) employed with respect to any Equity Interest of Seller or any Key Subsidiary)the Business, except for dividends and distributions among as may be required as a result of a change in Applicable Law, GAAP, Connecticut SAP or guidelines issued by the Purchased SubsidiariesCommission or its accounting staff;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests terminate the services of any Seller Allocated Employee or Key Subsidiaryof any of the Persons identified in Section 3.12(a) or materially change the duties of any such Person in a manner that adversely affects the Business, or materially reduce the amount of time such Person spends providing such services to the Business; provided that Purchaser shall not unnecessarily withhold its consent to any termination or change in duties described in this Section 5.01(b)(iv);
(v) materially change pay, discharge, compromise or satisfy any material claims, liabilities or obligations associated with the Business other than the payment, discharge compromise or satisfaction of its financial accounting policies claims, liabilities or procedures or any obligations in the ordinary course of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Casesbusiness consistent with past practice;
(vi) adopt enter into or terminate any amendments reinsurance agreement relating to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereofBusiness;
(vii) sell, pledge, lease, transfer, assign take or dispose of cause to be taken any Purchased Asset or permit any Purchased Asset action that would cause Sellers' Separate Accounts to become subject to any Encumbrance, be managed other than a Permitted Encumbrance, in each case, except in the Ordinary Course ordinary course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance business consistent with this Section 6.2)past practice;
(viii) increase the Commissions, salary, wages or benefits of any of the Persons identified pursuant to Section 3.12 except, in any case (Ax) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers as may be required under the DIP Facility terms of Sellers' employment or contractual relationships with such Persons, (y) in the ordinary course of business consistent with past practice, or (Bz) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for as may be provided under the obligations terms of any other Personretention agreement, except for Indebtedness for borrowed money among any Seller and Subsidiary stay bonus or among similar arrangement as may be necessary or appropriate to encourage the Subsidiariesretention of certain Transition Employees, which agreements, bonuses or arrangements shall be at Sellers' expense;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, agree in writing or otherwise, otherwise to take any of the foregoing actions described above in this Section 5.01(b); or
(x) directly or indirectly solicit or initiate any negotiations or discussions with, or provide any information to, or otherwise cooperate in any other manner with any Person or group of Persons (other than Purchaser, LLANY and their Affiliates) concerning any direct sale or other direct disposition of the Business.
(c) Prior to Closing, Seller shall notify Purchaser as promptly as reasonably practicable of any event or occurrence which might reasonably be expected to have a Material Adverse Effect on the Business, other than (i) any event, occurrence, development or state of circumstances or facts (including legislative, regulatory or judicial actions) affecting the life industry generally, or (ii) the effect of or changes to general market or economic conditions (including, but not limited to, changes in interest rates).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Lincoln National Corp), Asset Purchase Agreement (Aetna Life Insurance & Annuity Co /Ct)
Conduct of Business. (a) Except as Prior to the Closing, except (i) otherwise as set forth on Section 5.01 of the Company Disclosure Schedule, (ii) as required by Applicable Law or as required by any Governmental Authority, (iii) as required or expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall notthe Company shall, and shall not permit any cause each of its Subsidiaries to, use its commercially reasonable efforts to conduct its business in the Ordinary Course of Business and use their commercially reasonable efforts to preserve in all material respects the present business operations and organization of the Key Subsidiaries Company and its Subsidiaries.
(and b) Without limiting the generality of the foregoing, but subject to the provisions of this Section 5.01(b) in the case of clauses all respects, except (i) as set forth on Section 5.01 of the Company Disclosure Schedule, (ii) as required by Applicable Law or as required by any Governmental Authority, (iii) as required or expressly contemplated by this Agreement, or (iv) with the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), (ix), (xiii) or (xvi), the Company and its Subsidiaries shall not permit any Purchased Subsidiary) tonot:
(i) take issue, deliver, grant, sell, dispose of, pledge, award or otherwise encumber, redeem or repurchase, or authorize or propose any action of the foregoing with respect to which any Seller has granted approval rights Company Securities or Subsidiary Securities, other than the issuance of Subsidiary Securities to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval Company or one of such action from Sponsorits other Subsidiaries;
(ii) issue(A) effect any recapitalization, sellreclassification, pledgestock dividend, create an Encumbrance stock split or otherwise dispose of or authorize like change in the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests capitalization of the Transferred Entities, Company or grant any options, warrants or other rights to purchase or obtain of its Subsidiaries (including upon conversion, exchange or exercise) any such Equity Interests;
(iiiB) declare, set aside or pay any non-cash dividend or make any other non-cash distribution (whether in cash, securities respect of Company Securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary)Securities, except for dividends and or distributions among by any of the Purchased Company's wholly owned Subsidiaries or (C) declare any cash dividend that would be paid following the Calculation Time;
(iii) amend the Organizational Documents of the Company or its Subsidiaries;
(iv) directly dissolve or indirectly, purchase, redeem liquidate or otherwise acquire any Equity Interests adopt or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition a plan of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization recapitalization or in any other manner, reorganization;
(v) other than as required by the legal structure or ownership terms of any Key SubsidiaryEmployee Plan or Applicable Law, (A) grant or increase any severance or termination pay to such individual (or materially amend any existing severance or termination pay arrangement), other than to an employee with annual base compensation of less than $100,000 in the ordinary course of business consistent with past practice, (B) establish, adopt or approve a plan materially amend any Employee Plan, other than actions with respect to Employee Plans in order to implement the integration of prior transactions, which are set forth on Section 5.01(b)(v) of the Company Disclosure Schedule, (C) grant or increase compensation, bonus or other benefits payable to any current or former employee, director, independent contractor or other service provider of the Company or any of its Subsidiaries, other than to an employee or other service provider with annual base compensation of less than $130,000 in the foregoingordinary course of business consistent with past practice or (D) accelerate the vesting or payment of, or provide for the funding of, any amount payable to any current or former employee, director, independent contractor or other service provider of the Company or any of its Subsidiaries;
(vi) unless required by Law, (A) enter (or thereafter modify or extend) into any collective bargaining agreement or any other labor-related agreements or arrangements with any labor union or labor organization, or (B) recognize or certify any labor union, 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;
(vii) waive the restrictive covenant obligations of any current or former director, officer, employee, or independent contractor of the Company or its Subsidiaries;
(viii) hire (other than to fill positions vacated due to an employee terminating employment or departures prior to the Closing Date on terms substantially the same as the departing employee) or (other than for cause) terminate the employment of any employee with an annual base compensation of $100,000 or above;
(ix) implement or announce any employee layoffs, plant closings, reductions in force, or other such actions that could implicate the WARN Act;
(x) grant, incur, suffer, create or assume any Lien on any material asset (whether tangible or intangible) or property (including Real Property) of the Company or any of its Subsidiaries, except for Permitted Liens or in the ordinary course of business and consistent with past practice;
(xi) make any capital expenditures or commit to make any capital expenditures in excess of $500,000 individually or $1,000,000 in the aggregate in excess of what is contemplated by the capital expenditure budget provided to Buyer prior to the date hereof;
(xii) acquire (by merger or consolidation with any Person), directly or indirectly, any businesses, securities, interests or material assets (including Real Property) of any Person, other than the acquisition of assets in the Ordinary Course of Business;
(xiii) except in or from any wholly owned Subsidiary of the Company, purchase any securities or make any material investment in any Person, either by purchase of stock or securities, contributions to capital, asset transfers, or purchase of any assets, or otherwise acquire direct or indirect control over any Person for which the aggregate consideration paid (A) in any individual transaction is in excess of $300,000, or (B) in the aggregate is in excess of $500,000;
(xiv) incur any indebtedness for borrowed money in excess of $500,000 in the aggregate, except (A) intercompany debt in the ordinary course of business consistent with past practice or (B) as will be Closing Indebtedness or repaid prior to Closing;
(xv) enter into any Contract that limits sell, assign, license, mortgage, pledge, abandon, encumber, transfer, convey, lease or otherwise restricts dispose of any assets (other than Intellectual Property Rights or inventory in the Ordinary Course of Business) or properties (including Real Property) that would reasonably be expected toare material to the Company and its Subsidiaries, after taken as a whole;
(xvi) sell, assign, license, transfer, abandon or otherwise permit to lapse any material Company Intellectual Property Right, other than non-exclusive licenses granted in the Closingordinary course of business consistent with past practice;
(xvii) terminate or commute, restrict or limit materially modify, amend, extend or waive compliance with any provisions of, or materially waive, release or assign any rights or claims under, or grant any consent under (except to the extent consistent with current practices under such Real Property Lease) any Real Property Lease, other than allowing expiration according to its scheduled term or termination in accordance with its terms;
(xviii) make, change or revoke any material Tax election, adopt or change any method of accounting for federal income Tax purposes, settle any claim or assessment in respect of a material amount of Taxes, file any amended Tax Return or claim for a refund of a material amount of Taxes, surrender any right to claim a refund of a material amount of Taxes, or agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of a material amount of Taxes;
(xix) settle (A) any Proceeding solely against the Company and its Subsidiaries, except for settlements or compromises in the ordinary course of business consistent with past practice or where the amount paid in settlement or compromise does not exceed $1,000,000 above the sum of (x) the amount of any reserves reflected on the Balance Sheet in respect of such Proceeding and (y) the aggregate coverage provided for under any insurance policy of the Company or such Subsidiary in respect of such Proceeding, or (B) any Proceeding challenging any of the transactions contemplated by this Agreement;
(xx) other than (A) employment arrangements with employees, officers and directors of the Company or any of its Subsidiaries, which arrangements are governed by Sections 5.01(b)(v) and 5.01(b)(viii) or (B) Contracts with Representatives who are not directors, managers, officers or employees of the Company or its Subsidiaries, enter into, modify or amend any Related Party Transaction (except as required pursuant to Section 5.09);
(xxi) other than in the Ordinary Course of Business, enter into, amend in any material respect or terminate (other than allowing expiration according to its scheduled term, including by failing to renew) any Material Contract (or any contract that would constitute a Material Contract if in effect as of the date hereof);
(xxii) make any material change to any accounting method or system of internal accounting control, except (A) Purchaser as may be appropriate to conform to changes in regulatory accounting requirements, GAAP or other Applicable Law or (B) in the ordinary course of business;
(xxiii) cancel (except if being replaced) any insurance coverage or, subject to reasonable cost, reduce any such coverage; or
(xxiv) authorize, or commit or agree to do, anything prohibited by this Section 5.01(b); provided that, notwithstanding anything to the contrary contained herein,
(1) nothing in this Agreement shall prevent the Company or any of its Subsidiaries from taking or failing to take any successor thereto action, including the establishment of any policy, procedure or protocol, in each case, to the extent necessary (as reasonably determined by the Company after providing Buyer reasonable advance notice thereof) to respond to COVID-19 or comply with any COVID-19 Measures and (x) no such actions or failure to take such actions shall be deemed to violate or breach this Agreement in any way, (y) all such actions or failure to take such actions shall be deemed to constitute an action taken in the ordinary course of business and (z) no such actions or failure to take such actions shall serve as a basis for Buyer to terminate this Agreement or assert that any of the conditions to the Closing contained herein have not been satisfied;
(2) nothing in this Agreement shall restrict the Company or its Affiliates’ ability, in each case, (A) to declare and pay cash dividends or cash distributions (but not dividends or distributions in kind) upon the Equity Interests or other equity interests of the Company’s Subsidiaries, in each case subject to Applicable Law; provided that the Company may not declare or pay any such dividends in the five (5) Business Days prior to Closing without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), (B) prior to the Calculation Time, to repay or settle any Affiliates indebtedness for borrowed money of Purchaser the Company or any successor theretoof the Company’s Subsidiaries with payment prior to the Calculation Time or (C) subject to Section 5.09, to settle or otherwise eliminate balances and terminate agreements between any Seller or any of Affiliate of any Seller, on the one hand, and the Company or any of its Subsidiaries, on the other hand, in each case without any continuing liability (including any Tax liability) on the part of the Company or any of its Subsidiaries; provided that, in the case of each of clause clauses (A) or – (BC), from engaging or competing after giving effect to such payments, repayments and/or settlements, the Company and its Subsidiaries remain solvent and are able to meet their respective payment obligations in the Ordinary Course of Business and such payments, repayments and/or settlements do not disrupt in any line material respect the normal course operations of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facilitytheir respective businesses; and
(xviii3) agreethe parties acknowledge and agree that an e-mail from one or more of the following individuals (or such other persons as Buyer may specify by notice to the Company) specifically referencing this Section 5.01(b) and expressly granting consent shall constitute a valid form of consent of Buyer for all purposes under this Section 5.01(b): Xxxxx Xxxxx (XXxxxx@xxxxxxxxxxx.xxx).
(c) Prior to the Closing, Buyer shall not, and shall cause its Affiliates not to, directly or indirectly, take or agree to take (or omit to take or agree to omit to take) any action (including any action (whether by merger, consolidation or otherwise) to acquire, purchase, lease or license (or agree to acquire, purchase, lease or license) any business, Person or division or part thereof, or any securities or collection of assets, including entering into (or agreeing to enter into) any letter of intent, agreement in writing principle or definitive agreement for the acquisition, purchase, lease or license thereof) that would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any Consent of any Governmental Authority necessary to consummate the Merger or any of the other transactions contemplated hereby or the expiration or termination of any applicable waiting period under the HSR Act or any other applicable Antitrust Law, (ii) materially increase the risk of any Governmental Authority entering an Order to prevent, prohibit, restrict or delay the consummation of the Merger or any of the other transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such Order on appeal or otherwise, to take (iv) prevent, prohibit, restrict or materially delay the satisfaction of the conditions set forth in Section 8.01 of this Agreement or the consummation of the transactions contemplated hereby or (v) otherwise prevent, prohibit, restrict or materially delay the consummation of the Merger or any of the foregoing actionsother transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (MasterBrand, Inc.), Merger Agreement (MasterBrand, Inc.)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after 14.1 From the date of this Agreement and until the earlier Offer Closing Date, the Company covenants and agrees as to itself and its subsidiaries (unless AMEC shall otherwise approve in writing (such approval not to be unreasonably withheld, delayed or conditioned), and except for such matters referenced in Part I of the Closing and the termination of this AgreementAppendix 1, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with or as otherwise expressly contemplated or required by this Agreement or required by applicable Laws), that the business of it and its subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its subsidiaries shall use all their respective reasonable endeavours consistent with past practice to preserve their business organisations intact and maintain existing relations and goodwill with Governmental Authorities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the consummation services of its and its subsidiaries’ present employees and agents. Without limiting the generality of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business foregoing and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees thatfurtherance thereof, from and after the date of this Agreement and until the earlier of the Offer Closing and the termination of Date, except (A) as otherwise expressly contemplated or required by this Agreement, without the prior written consent of Purchaser (which consent shall B) as AMEC may approve in writing (such approval not to be unreasonably withheld, conditioned delayed or delayedconditioned), such Seller (C) as required by applicable Laws, or (D) for the matters referred to in Part I of Appendix 1), the Company shall not, and shall will not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) its subsidiaries to:
(ia) take adopt or propose any action with respect change in its Charter Documents (except for such amendments required pursuant to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsorclause 5.5(e) above);
(iib) merge or consolidate the Company or any of its subsidiaries with any other person, except for any such transactions among wholly-owned subsidiaries of the Company, or restructure, reorganise or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(c) acquire assets from any other person with a value or purchase price individually in excess of $25 million and in the aggregate in excess of $100 million in any transaction or series of related transactions, other than acquisitions pursuant to contracts in effect as of the date of this Agreement;
(d) issue, sell, pledge, create an Encumbrance dispose of, grant, transfer, encumber, or otherwise dispose of or authorize authorise the issuance, sale, pledge, Encumbrance disposition, grant, transfer or disposition encumbrance of, any shares of any Equity Interests capital stock of the Transferred EntitiesCompany or any of its subsidiaries (other than, in each case, the issuance or transfer of shares by a wholly-owned subsidiary of the Company to the Company or another wholly-owned subsidiary of the Company), or grant securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to purchase acquire any shares of such capital stock or obtain such convertible or exchangeable securities (including upon conversionother than, exchange in each case, (i) in satisfaction of Company Awards outstanding under the Company Omnibus Plan as at the date of this Agreement or exercisegranted in accordance with clause 8.4, or (ii) any such Equity Interestsmatters as are permitted under 14.1(q));
(iiie) create or incur any lien, charge, pledge, security, interest, claim or other encumbrance material to the Company or any of its subsidiaries on any assets of the Company or any of its subsidiaries having a value in excess of $10 million;
(f) except in the ordinary course of business pursuant to arrangements in existence at the date of this Agreement, make any loans, advances, guarantees or capital contributions to or investments in any person (other than the Company or any direct or indirect wholly-owned subsidiary of the Company), other than any loans, advances, guarantees, capital contributions or investments to be made in connection with the acquisition referred to in Part I of Appendix 1;
(g) declare, set aside aside, make or pay any dividend or make any other distribution (whether in cash, securities stock or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value in kind), with respect to any Equity Interest of Seller its capital stock or enter into any agreement with respect to the voting of its capital stock, other than the Permitted Xxxxxx Xxxxxxx Dividend and any dividend or distribution by a subsidiary of the Company to the Company or to another subsidiary of the Company;
(h) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock or cancel any treasury shares;
(i) draw upon any of its existing debt facilities, incur any indebtedness for borrowed money or guarantee such indebtedness of another person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any Key Subsidiary)of its subsidiaries, except for dividends (A) indebtedness for borrowed money incurred in the ordinary course of business consistent with past practices which are (i) not to exceed $20 million in the aggregate, (ii) in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, (iii) guarantees incurred in compliance with this clause 14.1 by the Company which guarantee the indebtedness of wholly-owned subsidiaries of the Company, or (iv) interest rate swaps on customary commercial terms consistent with past practice and distributions among not to exceed $20 million of notional debt in the Purchased Subsidiariesaggregate; or (B) as required in connection with (i) the transactions referred to in Part I of Appendix 1; (ii) the Permitted Xxxxxx Xxxxxxx Dividend; or (iii) the provision of cash collateral in respect of any existing counter-indemnity obligation of the Company Group, which is required to be funded before the Offer Closing Date;
(j) make or authorise any capital expenditure in excess of $30 million in the aggregate;
(k) other than in the ordinary course of business consistent with past practice, enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement;
(l) make any changes with respect to accounting policies or practices except as required by changes in applicable Laws (including the NASDAQ Stock Market rules) or US GAAP;
(m) settle, dismiss or take any other action with respect to any dispute, litigation or other proceedings (excluding any asbestos personal injury litigation or claims) where such settlement, dismissal or action involves the Company Group incurring an amount in excess of $20 million;
(n) take any action in relation to any asbestos personal injury litigation or claims other than in the ordinary course of business consistent with past practice;
(o) amend, modify or terminate any Material Contract;
(p) (i) make or settle any Tax claim, surrender any right to claim a refund of Tax, make or change any Tax election, enter into any agreement with any Tax authority, or seek any ruling, surrender, clearance or confirmation from any Tax authority, where the relevant claim, election, agreement, ruling, clearance or confirmation is in respect of an actual or potential liability to Tax, or of Tax relief, in excess of $10 million; or (ii) other than in the ordinary course of business, become resident for Tax purposes or create a permanent establishment, in either case, in a jurisdiction where such entity was not so resident or did not have such a permanent establishment prior to the date of this Agreement;
(q) other than in the ordinary course of business consistent with past practice, transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any material assets, licences, operations, rights, product lines, businesses or interests therein of the Company or its subsidiaries, including capital stock of any of its subsidiaries;
(r) except as required pursuant to existing contractual agreements in effect prior to the date of this Agreement:
(i) grant or provide any payment or other benefit payable in connection with a change of control of the Company (including but not limited to the transactions contemplated by this Agreement) to any director, officer, employee or independent contractor of the Company or any of its subsidiaries;
(ii) grant or provide any severance or termination payments (including but not limited to any payments payable in connection with a change of control of the Company (including but not limited to the transactions contemplated by this Agreement)) to any director, officer, employee or independent contractor of the Company or any of its subsidiaries, save that the Company may make such severance or termination payments (other than those payable in connection with a change of control of the Company) in accordance with any existing custom or practice regarding termination payments in the ordinary course of business, or as bona fide compensation to settle a claim;
(iii) grant or provide any new or additional benefits to any director, officer, employee or independent contractor of the Company or any of its subsidiaries;
(iv) directly other than in the ordinary course of business, increase the compensation, bonus or indirectlypension, purchasewelfare, redeem severance or otherwise acquire other benefits of, pay any Equity Interests bonus to, or grant or commit to grant any new equity awards to any director, officer, employee or independent contractor of the Company or any rights to acquire any Equity Interests of any Seller or Key Subsidiaryits subsidiaries;
(v) materially change establish, adopt, amend or terminate any of its financial accounting policies or procedures Company Benefit Plan (or any trust instruments, funds or insurance contracts related thereto) or amend the terms of its methods of reporting income, deductions or other material items for financial accounting purposesany outstanding equity-based awards, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Lawwould not reasonably be expected to increase the expense of maintaining, or as modified by Parent as a result of the filing of the Bankruptcy Casesliability under, such plan;
(vi) adopt take any amendments action to its Organizational Documents accelerate the vesting or permit payment, or secure the adoption payment, of compensation or benefits under any amendment Company Benefit Plan (including, for the avoidance of doubt, any action which would trigger a debt payable to the Company Benefit Plan under section 75 or 75A of the Organizational Documents of Pensions Act 1995 (UK)), to the extent not already provided in any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereofsuch Company Benefit Plan;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any materially change to any actuarial or other assumption assumptions used to calculate funding obligations with respect to any Company Benefit Plan or any to change to the manner in which contributions to any Benefit Plan such plans are made or the basis on which such contributions are determined), except where as may be required by US GAAP, or agree with the trustee or manager of any such action would reduce Sellers’ costs or Liabilities pursuant plan to such change or technical provisions underlying the current actuarial valuation or any change to the schedule of contributions or recovery plan, ;
(D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (Fviii) forgive any loans to Employees directors, officers, employees or independent contractors;
(ix) enter into or amend or terminate any collective bargaining agreement or take any steps with a view to entering into such an agreement; or
(x) effectuate or commence any collective redundancy exercise or a “plant closing” or “mass layoff” as those terms are defined in the US Worker Adjustment and Retraining Notification Act of Sellers 1988, as amended (or any Purchased Subsidiary similar action requiring notice or severance pay under the applicable Laws) affecting in whole or in part any site of employment, facility, operating unit or employee of the Company or any of its subsidiaries, save in respect of the restructuring of the GPG division as set out in paragraph 1 of Part I of Appendix 1, the cost of which has been provided by the Company to AMEC prior to the date of this Agreement; or
(s) agree, authorise or commit to do any of the foregoing.
14.2 From the date of this Agreement until the Offer Closing Date, AMEC covenants and agrees as to itself and its subsidiaries (unless the Company shall otherwise approve in writing (such approval not to be unreasonably withheld, delayed or conditioned), and except for such matters referenced in Part II of Appendix 1, and except as otherwise expressly contemplated or required by this Agreement or required by applicable Laws), that the business of it and its subsidiaries shall be conducted in the ordinary and usual course. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Offer Closing Date, except (A) as otherwise expressly required by this Agreement, (B) as the Company may approve in writing (such approval not to be unreasonably withheld, delayed or conditioned), or (C) as required by applicable Laws, AMEC will not and will not permit its subsidiaries to:
(a) adopt or propose any change in its Charter Documents;
(b) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorise the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any shares of capital stock of AMEC or any of its subsidiaries (other than as part the issuance or transfer of shares by a settlement wholly-owned subsidiary of AMEC to AMEC or another wholly-owned subsidiary), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any pending Claim kind to acquire any shares of such capital stock or charge involving a Governmental Authority such convertible or litigation exchangeable securities save (i) that shares may be issued to satisfy the vesting and/or exercise of awards and/or options outstanding under the AMEC Employee Share Plans as at the date of this Agreement and save for AMEC Options and AMEC Awards which may be granted in the Ordinary Course ordinary course of Business business and (ii) for transfers, sales, or with respect to obligations disposals of Employees whose employment is terminated by Sellers or a Purchased Subsidiary any of the capital stock of any of AMEC subsidiaries in the Ordinary Course ordinary course of Business, other than Employees who are current or former officers or directors business consistent with past practice (except as provided in Part II of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit PlanAppendix 1);
(xic) modifydeclare, amendset aside, terminate make or waive pay any rights under any Affiliate Contract dividend or Seller Material Contract other distribution (except for any dealer sales and service Contracts or as contemplated by Section 6.7) whether in any material respect in a manner that is adverse to any Seller that is a party theretocash, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization stock or in any other mannerkind), the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of its capital stock or enter into any agreement with respect to the foregoingvoting of its capital stock, other than the Permitted AMEC Dividend and any dividend or distribution by a subsidiary of AMEC to AMEC or to another subsidiary of AMEC;
(xvd) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(e) enter into any Contract agreement or implement or recommend any transaction (conditionally or unconditionally) that limits or otherwise restricts or that would could reasonably be expected toto limit, after the Closing, restrict impair or limit prevent in any material respect AMEC’s ability to perform its obligations under this Agreement or consummate the Acquisition or announce its intention (Aconditionally or unconditionally) Purchaser to do so; or
(f) agree, authorise or commit to do any of the foregoing.
14.3 Prior to making any written or oral communications to the directors, officers, employees or independent contractors of the Company or any of its Subsidiaries subsidiaries pertaining to compensation or any successor thereto or (B) any Affiliates of Purchaser or any successor benefit matters that are affected by the transactions contemplated by this Agreement, the Company shall, subject to applicable Laws, reasonably consult with AMEC in relation thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Implementation Agreement (Amec PLC), Implementation Agreement (Amec PLC)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated as permitted by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on as set forth in Section 6.2 6.2(a) of the Sellers’ Partnership Disclosure Schedule; , (iii) approved as required by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcyapplicable Laws, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) as required by or resulting from any changes to applicable Laws, from and after Partnership Material Contract in effect as of the date of this Agreement and until (including the earlier of the Closing and the termination of this Partnership Agreement, Sellers shall and shall cause each Purchased Subsidiary ) or (v) as consented to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing by Parent (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), during the period from the date of this Agreement until the Effective Time, each of the Partnership and the General Partner shall, and shall cause each of their respective Subsidiaries to: (A) conduct its business in the ordinary course of business consistent with past practice, provided, that this Section 6.2(a)(iv)(A) shall not prohibit the Partnership and the other Group Members from taking commercially reasonable actions outside of the ordinary course of business or not consistent with past practice in response to changes or developments that would reasonably be expected to cause a reasonably prudent company similar to the Partnership to take commercially reasonable actions outside of the ordinary course of business consistent with past practice; (B) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees, if any; (C) use commercially reasonable efforts to keep in full force and effect all material Partnership Permits and all material insurance policies maintained by the Group Members, other than changes to such Seller policies made in the ordinary course of business and (D) use commercially reasonable efforts to comply in all material respects with all applicable Laws and the requirements of all Partnership Material Contracts; provided, that no action or inaction by the Partnership, the General Partner, or their respective Subsidiaries with respect to the matters specifically addressed by any portion of the remaining provisions of this Section 6.2(a) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provisions of this Section 6.2(a). During the period from the date of this Agreement until the Effective Time, if permitted by applicable Law and the Partnership Agreement, the General Partner shall cause the Partnership to declare and pay regular quarterly cash distributions to the holders of the Common Units, consistent with past practice; provided, that, in no event shall the regular quarterly cash distributions declared or paid by the Partnership to the holders of the Common Units be less than $0.35 per Common Unit. Without limiting the generality of the foregoing, except (i) as expressly permitted by this Agreement, (ii) as set forth in Section 6.2(a) of the Partnership Disclosure Schedule, (iii) as required by applicable Laws, (iv) as required by any Partnership Material Contract in effect as of the date of this Agreement (including the Partnership Agreement), or (v) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, the Partnership and the General Partner shall not, and shall not permit any of the Key their respective Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contractamend the Organizational Documents (whether by merger, including under the UST Credit Facilitiesconsolidation, without obtaining the prior approval conversion or otherwise) of such action from Sponsorentity in any manner that would reasonably be expected to prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement;
(ii) with respect to the Partnership only, declare, authorize, set aside or pay any distribution payable in cash, equity or property in respect of the Common Units, other than regular quarterly distributions that are declared and paid consistent with past practice and do not exceed $0.35 per Common Unit per quarter;
(iii) other than in the ordinary course of business consistent with past practice, issue, sell, pledge, create an Encumbrance or otherwise dispose of of, grant, transfer, encumber, or authorize the issuance, sale, pledge, Encumbrance disposition, grant, transfer, lease, license, guarantee or disposition of encumbrance of, any Equity Interests equity securities of the Transferred EntitiesPartnership or any of its Subsidiaries, or grant securities convertible or exchangeable into or exercisable for any equity securities, or any options, warrants or other rights of any kind to purchase or obtain (including upon conversion, exchange or exercise) acquire any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, equity securities or such convertible or exchangeable securities or interests, other property than (A) issuances of Common Units upon vesting or by allocation settlement of additional Indebtedness to any Seller Partnership LTIP Awards that are outstanding on the date of this Agreement or any Key Subsidiary without receipt of fair value otherwise granted in compliance with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends this Agreement and distributions among the Purchased Subsidiaries(B) Partnership Permitted Liens;
(iv) make any acquisition or disposition, directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire indirectly (including by merger, consolidation, combination or acquisition of Equity Interests assets, tender or assets) exchange offer or otherwise), of any Person business or any corporation, partnership, limited liability company, joint venture or other business organization or division thereof (or any property or assets of any other Person, other than (x) acquisitions of portfolio assets and acquisitions or dispositions in the Ordinary Course ordinary course of Businessbusiness or (y) acquisitions or dispositions outside of the ordinary course of business not to exceed $10,000,000 in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000aggregate;
(xivv) altersplit, whether through combine, divide, subdivide, reverse split, reclassify, recapitalize or effect any other similar transaction with respect to any of such entity’s equity interests;
(vi) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization dissolution or in any other manner, the legal structure restructuring or ownership of any Key Subsidiary, or adopt or approve a plan with respect to or agreement of reorganization under any of the foregoingbankruptcy or similar Law;
(xvvii) enter into waive, release, assign, settle or compromise any Contract that limits Proceeding, including any state or otherwise restricts federal regulatory Proceeding seeking damages or that injunction or other equitable relief, which waiver, release, assignment, settlement or compromise would reasonably be expected toto result in a Partnership Material Adverse Effect;
(viii) make any material changes in financial accounting methods, after principles or practices (or change an annual accounting period), except insofar as may be required by a change in GAAP;
(ix) except as required by the Closingterms of any Partnership Benefit Plan existing and in effect on the date of this Agreement or as contemplated by this Agreement, restrict (w) establish, adopt, materially amend or limit modify, commence participation in or terminate (or commit to establish, adopt, materially amend or modify, commence participation in or terminate) any material Partnership Benefit Plan (or any plan or arrangement that would be a material Partnership Benefit Plan if in effect as of the date of this Agreement), (x) materially increase in any material respect (A) Purchaser manner the compensation, severance or benefits of any of the current or former directors, officers, employees, consultants, independent contractors or other service providers of the General Partner, the Partnership or any of its Subsidiaries their respective Subsidiaries, or enter into or amend any successor thereto employment, severance, termination, retention or consulting agreement, in each case, other than in the ordinary course of business, (y) accelerate any material rights or benefits under any Partnership Benefit Plan or (Bz) grant or amend any Affiliates of Purchaser Partnership LTIP Awards or any successor theretoother equity awards, except in each case in the case ordinary course of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;business; or
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviiix) agree, in writing or otherwise, to take any of the foregoing actions.
(b) Except (i) as permitted by this Agreement, (ii) as required by applicable Laws, (iii) as provided in any Parent Material Contract in effect as of the date of this Agreement, or (iv) as consented to in writing by the Partnership (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, Parent shall, and shall cause each other Parent Party and their respective Subsidiaries to: (A) conduct its business in the ordinary course of business consistent with past practice; provided, that this Section 6.2(b)(iv)(A) shall not prohibit Parent and its Subsidiaries from taking commercially reasonable actions outside of the ordinary course of business or not consistent with past practice in response to changes or developments that would reasonably be expected to cause a reasonably prudent company similar to Parent to take commercially reasonable actions outside of the ordinary course of business consistent with past practice; (B) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees; (C) use commercially reasonable efforts to keep in full force and effect all material Permits of Parent and all material insurance policies maintained by such Parent Party, other than changes to such policies made in the ordinary course of business and (D) use commercially reasonable efforts to comply in all material respects with all applicable Laws and the requirements of all Parent Material Contracts; provided, that no action or inaction by any Parent Party or their respective Subsidiaries with respect to the matters specifically addressed by any portion of the remaining provisions of this Section 6.2(b) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provisions of this Section 6.2(b). Without limiting the generality of the foregoing, except (i) as expressly permitted by this Agreement, (ii) as required by applicable Laws, (iii) as provided in any Parent Material Contract in effect as of the date of this Agreement, or (iv) as consented to in writing by the Partnership (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, Parent shall not, and shall not permit any of the other Parent Parties or their respective Subsidiaries to:
(i) amend any Parent Party’s Organizational Documents (whether by merger, consolidation, conversion or otherwise) in any manner that would reasonably be expected to (A) prevent or in any material respect hinder, impede or delay the ability of the parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by this Agreement or (B) adversely affect (1) the economic benefits to be obtained by Partnership Unaffiliated Unitholders or (2) the terms of the Parent Common Stock in any material respect;
(ii) cause Parent to merge, consolidate or enter into any other business combination transaction or agreement with any Person in which such other Person is the surviving entity;
(iii) adopt a plan or agreement of complete or partial liquidation, dissolution or restructuring of Parent or a plan or agreement of reorganization of Parent under any bankruptcy or similar Law or take any action to cause the liquidation, winding up or dissolution of Merger Sub;
(iv) waive, release, assign, settle or compromise any Proceeding, including any state or federal regulatory Proceeding seeking damages or injunction or other equitable relief, if such waiver, release, assignment, settlement or compromise would reasonably be expected to result in a Parent Material Adverse Effect;
(v) declare, authorize, set aside or pay any distribution payable in cash, stock or property in respect of any of Parent’s capital stock, other than regular quarterly cash dividends on the Parent Common Stock in the ordinary course of business consistent with past practice and other than dividends or distributions with a record date after the Effective Time, subject to Section 6.10; provided, however, that nothing contained herein shall prohibit Parent Board from increasing or decreasing the quarterly cash dividend on Parent Common Stock in the ordinary course of business consistent with past practice; or
(vi) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Holly Energy Partners Lp), Merger Agreement (HF Sinclair Corp)
Conduct of Business. (a) Except as (i) Unless otherwise expressly contemplated hereby (including the OmniAmerica Permitted Transactions) or approved in writing by or permitted under this AgreementSTI, Omni/HSW Acquisition agrees that its businesses and operations shall be conducted only in, and it shall not take any material action except in, the ordinary course of business of the HSW Assets and consistent with past practice of the HSW Assets, including, without limitation, in material compliance with all applicable laws, rules and regulations, including the DIP Facility; (ii) disclosed on Section 6.2 rules and regulations of the Sellers’ Disclosure Schedule; (iii) approved by FAA and FCC. Without limitation, Omni/HSW Acquisition shall not take, nor enter into any agreements to take, any of the Bankruptcy Court (or any other court or other Governmental Authority following actions except in each such case in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts consented to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser writing by STI (which consent shall may not be unreasonably withheld) or, conditioned or delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in the case of actions described in clauses (ia) - (c) of this Section 5.4.2, in the ordinary course of business consistent with past practice: (a) dispose of, or acquire, or agree to dispose of or acquire, any material assets, (b) incur any indebtedness for borrowed money, except for borrowings of up to $500,000, (c) pay any discretionary bonuses (other than bonuses already accrued on the date hereof) to, or alter the compensation or benefit of, any director, officer or employee, (d) enter into any transaction or agreement with any Affiliate or associate (as defined in Rule 405 under the Securities Act), (ix)e) institute any material reduction in force, (xiiif) close any office, base or station, (xvi), shall not permit any Purchased Subsidiary) to:
(ig) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under not in the UST Credit Facilities, without obtaining the prior approval ordinary course of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests business of the Transferred EntitiesHSW Assets that will knowingly cause any of the representations or warranties of OmniPartners concerning Omni/HSW Acquisition to be untrue or incorrect in any material respect, (h) omit any commercially reasonable action that it would take in the ordinary course of business of the HSW Assets, which omission will knowingly cause any of the representations or grant warranties of OmniPartners concerning Omni/HSW Acquisition to be untrue or incorrect in any optionsmaterial respect, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iiii) declare, set aside or pay any dividend dividends on, or make any distribution or payment with respect to, or redeem or repurchase, any shares of capital stock, options, warrants, or any securities convertible into or exchangeable for or exercisable for shares of capital stock of any such party, (whether in cashj) amend its certificate of incorporation or bylaws or (k) issue any shares of capital stock of such party or any securities, securities options, warrants, rights, calls, commitments, plans, contracts or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests agreements of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in character whatsoever which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under purchase, issuance or transfer of any Benefit Planshares of capital stock, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim securities that are convertible into or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except exchangeable for any dealer sales and service Contracts shares of capital stock of Omni/HSW Acquisition, or as contemplated by Section 6.7) in increase or decrease, change into or exchange any material respect in such shares for a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course different number or kind of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination shares or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether securities through a complete or partial liquidationreorganization, dissolutionrecapitalization, mergerreclassification, consolidationstock dividend, restructuringstock split, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiaryreverse stock split, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit other similar change in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionscapitalization.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Specialty Teleconstructors Inc), Agreement and Plan of Merger (Hicks Thomas O)
Conduct of Business. (a) Except as During the Interim Period, except (i) otherwise expressly as may be reasonably required by emergency or force majeure conditions (as determined by Seller in Seller’s reasonable discretion) or (ii) as contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing Seller and the termination Company shall (A) operate the Transferred Assets in the Ordinary Course of Business or as otherwise contemplated by this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (AB) conduct their operations maintain the Transferred Assets in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, and (C) use commercially reasonable best efforts consistent with past practice to keep available the services of employees, and maintain existing relationships with any Governmental Entity, licensors, customers, suppliers, distributors, clients, and others having business relationships with Seller or the Company related to the Transferred Assets or the Business, including by using commercially reasonable efforts to preserve (1) renew, extend or otherwise modify any Assumed Contracts scheduled to expire during the Interim Period (subject to clause (b) of this Section 5.2), (2) include in such Assumed Contracts an assignment clause that will allow the Ordinary Course assignment of Business such contracts to the Company and the transfer of the Interests to Buyer and (3) perform and comply in all material respects with all material covenants and conditions of Seller and the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth Company contained in ARTICLE IV the Assumed Contracts to be untrue in any material respect as of any such date when such representation performed and complied with by Seller or warranty is made or deemed the Company prior to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to During the exceptions contained in clauses (i) through (iv) of Section 6.2(a)Interim Period, each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without except with the prior written consent of Purchaser (which consent shall not be unreasonably withheldBuyer, conditioned or delayed), such neither Seller shall not, and shall not permit any of nor the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) toCompany shall:
(i) take any action except in connection with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issuePre-Closing Reorganization, sell, pledgeexchange, create an Encumbrance lease, license, transfer or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain Asset (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2Business);
(viiiii) terminate (Aother than a termination for reason of a material breach by another party or, subject to clause (a) incur or assume of this Section 5.2, expiration per the terms of such Assumed Contract), assign, amend any Indebtedness for borrowed money or issue material term under, grant any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit waiver (including through the incurrence of Intercompany Obligationsin a manner adverse to Seller) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among material term under or grant any Seller and Subsidiary material consent (in a manner adverse to Seller) with respect to any Assumed Contract or among the Subsidiariesany Existing Permit;
(ixiii) discharge voluntarily create, grant or satisfy permit any Indebtedness in excess of $100,000,000 Lien on or affecting any Transferred Asset, other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled termsPermitted Liens;
(iv) settle or compromise any Action with respect to the Transferred Assets or the Business in a manner that would adversely affect the Business after Closing;
(v) incur any liabilities with respect to the Transferred Assets or the Business for which Buyer or the Company would be responsible after Closing except pursuant to and in compliance with the express terms of the Assumed Contracts;
(vi) except (x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and SponsorLaw, (Ay) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (Gz) exercise any discretion as would relate to accelerate substantially all other similarly situated employees of Seller or its Affiliates, (A) materially increase the time amount of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate payable to or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to become payable to any Seller that is a party thereto, other than in Employee or (B) hire new Employees or terminate the Ordinary Course employment of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof Employee (other than acquisitions of portfolio assets and acquisitions a termination for cause) or transfer any Employees except to fill vacancy in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;existing positions; or
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xvvii) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take do any of the foregoing actionsforegoing.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (NGL Energy Partners LP), Membership Interest Purchase Agreement (NGL Energy Partners LP)
Conduct of Business. (a) Except as (i) otherwise expressly as permitted or contemplated by this Agreement or permitted under this Agreementthe Company Disclosure Schedule, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; as required by applicable Law and (iii) approved as may be agreed in writing by Parent, which consent shall not unreasonably be conditioned, delayed or withheld, during the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Termination Date or the Closing and the termination of this AgreementDate, Sellers shall Company shall, and shall cause each Purchased Subsidiary to of its Subsidiaries to, (Ax) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and its business in all material respects in the present ordinary course consistent with past practice, (y) to the extent consistent therewith, use commercially reasonable efforts to preserve its current relationships of Sellers and each of their Subsidiaries with their respective its material customers, vendors, suppliers and others having significant other Persons with which they have business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made relationships and (Ez) not take any action that would reasonably be expected to materially prevent pay their trade payables in the ordinary course of business. In addition, and without limiting the generality of the foregoing, except (A) as permitted or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (ivcontemplated by this Agreement or Section 5.1(a) of Section 6.2(a)the Company Disclosure Schedule and (B) as required by applicable Law, each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller Company shall not, and shall not permit any of its Subsidiaries to, do any of the Key Subsidiaries (and in following without the case prior written consent of clauses (i)Parent, (ix), (xiii) or (xvi), which consent shall not permit any Purchased Subsidiary) tobe unreasonably conditioned, delayed or withheld:
(i) take any action with respect that, had it occurred prior to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining date of this Agreement would have violated Section 4.7 or been disclosed on Section 4.7 of the prior approval of such action from SponsorCompany Disclosure Schedule;
(ii) acquire or agree to be acquired by merging or consolidating with, or by purchasing a substantial portion of the assets or equity in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire any assets of any Person outside the ordinary course of business in accordance with past practice, except as part of a transaction permitted by Section 5.3;
(iii) issue, deliver, sell, pledgegrant, create an Encumbrance pledge or otherwise dispose encumber or subject to any Lien (A) any shares of its capital stock, (B) any Voting Company Debt or authorize the issuanceother voting securities, sale, pledge, Encumbrance (C) any securities convertible into or disposition of any Equity Interests of the Transferred Entitiesexchangeable for, or grant any options, warrants or other rights to purchase acquire, any such shares, Voting Company Debt, voting securities or obtain convertible or exchangeable securities or (including upon conversion, exchange or exerciseD) any stock appreciation, “phantom” stock, profit participation or dividend equivalent rights or similar rights with respect to Company or any Subsidiary, other than in each case (I) the issuance of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case outstanding as of the date of this Agreement and in accordance with their terms as of the date of this Agreement, (II) the sale of shares of Company Common Stock pursuant to the exercise of Company Stock Options if necessary to effectuate an optionee direction upon exercise for withholding of Taxes or (III) the acquisition of Company Common Stock from a holder of a Company Stock Option in satisfaction of the payment of the exercise price of Company Stock Options or withholding obligations with respect to the exercise thereof;
(iv) amend the Company Charter Documents or other comparable charter or organizational documents of any of its Subsidiaries except as may be required by Law or the rules and regulations of the SEC or Nasdaq;
(v) (A) grant to any current or former director, officer, employee or consultant of Company or any of its Subsidiaries any increase in compensation, bonus or fringe or other benefits or grant any type of compensation or benefit to any such Equity InterestsPerson not previously receiving or entitled to receive such compensation except for normal increases in cash compensation in the ordinary course of business consistent with past practice or to the extent required under Company Benefit Plans in effect as of the date of this Agreement, (B) grant to any such Person any increase in severance, change in control or termination compensation or benefits, except to the extent required under any Company Benefit Plans in effect as of the date of this Agreement, or (C) adopt, enter into, terminate, amend, accelerate or waive rights to or under any Company Benefit Plan;
(vi) enter into new lines of business outside of their existing business and reasonable extensions of their existing business;
(vii) except for transactions among the Company and its Subsidiaries or among its Subsidiaries, (A) incur any Company Indebtedness, except for short-term borrowings that are not pursuant to the Company Credit Facility (unless Parent is not current with the payments due pursuant to Section 5.11 and Exhibit A, in which case borrowings under the Company Credit Facility are permitted as long as such borrowings are not in excess of the amount still due and owing by Parent to Company pursuant to Section 5.11 and Exhibit A) in an aggregate amount not in excess of $1,000,000 incurred in the ordinary course of business consistent with past practice, or (B) make any loans, advances or capital contributions to, or investments in, any other Person, whether by purchase of stock or securities, contributions to capital or property transfers;
(viii) enter into any material Contract to the extent consummation of the Transactions or compliance by the Company with the provisions of this Agreement would conflict with, or result in a material violation or material breach of or material default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation, under any provision of such material Contract;
(ix) except in the ordinary course of business consistent with past practice and to the extent not prohibited by other provisions of this Section 5.1(a), enter into, terminate, renew, extend, amend or modify in any material respect, any Company Material Contract;
(x) fail to use its commercially reasonable efforts to maintain in full force and effect the existing insurance policies or to replace such insurance policies with comparable insurance policies covering the Company, its Subsidiaries and their respective properties, assets and businesses;
(xi) increase the size of the Company Board; or
(xii) authorize any of, or commit or agree to take any of, the foregoing actions.
(b) Except (i) as permitted or contemplated by this Agreement, the Parent Disclosure Schedule, the Financing Letter and the Related Person Investment Commitment, (ii) as required by applicable Law and (iii) as may be agreed in writing by Company, which consent shall not unreasonably be conditioned, delayed or withheld, during the period from the date of this Agreement until the earlier of the Termination Date or the Closing Date, Parent shall, and shall cause each of its Subsidiaries to, (x) conduct its business in all material respects in the ordinary course consistent with past practice, and (y) to the extent consistent therewith, use commercially reasonable efforts to preserve its current relationships with its material customers, vendors, suppliers and other Persons with which they have business relationships. In addition, and without limiting the generality of the foregoing, except (A) as permitted or contemplated by this Agreement or the Parent Disclosure Schedule and (B) as required by applicable Law, Parent shall not, and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of Company, which consent shall not be unreasonably conditioned, delayed or withheld:
(i) take any action that, had it occurred prior to the date of this Agreement would have violated Section 3.8 or been disclosed on Section 3.8 of the Parent Disclosure Schedule;
(ii) acquire or agree to be acquired by merging or consolidating with, or by purchasing a substantial portion of the assets or equity in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire any assets of any Person outside the ordinary course of business in accordance with past practice;
(iii) declareissue, set aside deliver, sell, grant, pledge or pay otherwise encumber or subject to any dividend Lien (A) any shares of its capital stock, (B) any Voting Parent Debt or make other voting securities, (C) any distribution (whether in cashsecurities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or other property convertible or by allocation of additional Indebtedness to exchangeable securities or (D) any Seller stock appreciation, “phantom” stock, profit participation or any Key Subsidiary without receipt of fair value dividend equivalent rights or similar rights with respect to any Equity Interest of Seller Parent or any Key Subsidiary), except other than in each case (I) the issuance of Parent Common Stock upon the exercise of Parent Stock Options outstanding as of the date of this Agreement and in accordance with their terms as of the date of this Agreement, (II) the sale of shares of Parent Common Stock pursuant to the exercise of Parent Stock Options if necessary to effectuate an optionee direction upon exercise for dividends and distributions among withholding of Taxes or (III) the Purchased Subsidiariesacquisition of Parent Common Stock from a holder of a Parent Stock Option in satisfaction of withholding obligations in payment of the exercise price of Parent Stock Options or withholding obligations with respect to the exercise thereof;
(iv) directly amend the Parent Charter Documents or indirectly, purchase, redeem other comparable charter or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests organizational documents of any Seller of its Subsidiaries except as may be required by this Agreement, Law or Key Subsidiarythe rules and regulations of the SEC or Nasdaq;
(v) materially change any enter into new lines of its financial accounting policies or procedures or any business outside of its methods their existing business and reasonable extensions of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Casestheir existing business;
(vi) adopt except for transactions among the Parent and its Subsidiaries or among its Subsidiaries, (A) incur any amendments Parent Indebtedness, except (1) borrowings in an amount not in excess of 1,000,000 in the aggregate or (2) advances under the Parent Credit Agreement, in each case only to its Organizational Documents or permit the adoption extent that such Parent Indebtedness does not negatively impact the ability of any amendment Parent to comply with the requirements and conditions precedent of the Organizational Documents Financing Letter and Parent Credit Agreement to fund the Transaction, or (B) make any loans, advances or capital contributions to, or investments in, any other Person, whether by purchase of any Key Subsidiary stock or effect a splitsecurities, combination contributions to capital or reclassification or property transfers, other adjustment than advances to suppliers in the ordinary course of Equity Interests of any Purchased Subsidiary or a recapitalization thereofbusiness;
(vii) sellenter into any material Contract to the extent consummation of the Transactions or compliance by the Parent with the provisions of this Agreement would conflict with, pledgeor result in a material violation or material breach of or material default (with or without notice or lapse of time, leaseor both) under, transferor give rise to a right of, assign or dispose result in, termination, cancellation or acceleration of any Purchased Asset or permit obligation, under any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course provision of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2)such material Contract;
(viii) (A) incur fail to use its commercially reasonable efforts to maintain in full force and effect the existing insurance policies or assume any Indebtedness for borrowed money or issue any debt securitiesto replace such insurance policies with comparable insurance policies covering Parent, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased its Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assumetheir respective properties, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller assets and Subsidiary or among the Subsidiaries;businesses; or
(ix) discharge authorize any of, or satisfy commit or agree to take any Indebtedness in excess of, the foregoing actions.
(c) During the period from the date of $100,000,000 this Agreement until the earlier of the Termination Date or the Closing Date, each party shall give the other than the discharge or satisfaction party notice of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule)effect, any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement event or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after to have a Material Adverse Effect on the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsnotifying party.
Appears in 2 contracts
Samples: Merger Agreement (Perfumania Holdings, Inc.), Merger Agreement (Perfumania Holdings, Inc.)
Conduct of Business. (a) Except as At all times from the execution of this Agreement until the Effective Time, and MART:
(i) otherwise expressly contemplated by or permitted under this AgreementShall, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the ClosingMART Subsidiaries to, (C) use commercially reasonable best efforts to preserve intact its business organizations and goodwill and keep available the services of its officers and employees;
(ii) Shall, and shall cause each of the MART Subsidiaries to, consult in good faith, cooperate and confer on a regular basis with one or more Representatives of Kimco designated by Kimco to report operational matters of materiality, including, but not limited to, leasing operations, acquisition, disposition, budget and capital improvement activities of MART and the MART Subsidiaries, in order to allow for an orderly transition after the Effective Time, and, subject to Section 7.1, any proposals to engage in material transactions, whether or not in the Ordinary Course ordinary course of Business business;
(iii) Shall, and in all material respects the present relationships of Sellers and shall cause each of their the MART Subsidiaries with their respective customersto, suppliers and others having significant business dealings with them, (D) not take any action to cause any promptly notify Kimco of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as adverse change in the condition (financial or otherwise), business, properties, assets, liabilities, prospects of its business or its properties, any material governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated), or the breach or inaccuracy of any such date when such representation or warranty is made contained herein;
(iv) Shall promptly notify Kimco of any and all material correspondence or deemed material communications received from any equity holder of any MART Subsidiary (including providing summaries of any oral communications with such equity holder);
(v) Shall give reasonable prior notice to Kimco (but in any event not less than 48 hours prior to such communications) of any intended material correspondence or material communications to any equity holder of any MART Subsidiary;
(vi) Shall promptly deliver, or cause to be made delivered, to Kimco copies of any material correspondence received from any tenant leasing more than 20,000 square feet of space, including, without limitation, any notice of default or request for consent to assign or sublet;
(vii) Shall, and shall cause each of the MART Subsidiaries to, use commercially reasonable efforts to comply with all material loan documents to which any such entity is a party and to comply with all material REA Agreements, ground leases and other material contracts;
(viii) Shall promptly deliver, or cause to be delivered, to Kimco (i) prior notice of at least 24 hours before any draw by MART on its revolving line(s) of credit subject to Section 7.2(xi), (ii) on a weekly basis, a status report detailing all activity by MART relating to its revolving line(s) of credit and (Eiii) on a monthly basis, a balance sheet, a statement of operations and a statement of cash flows, prepared internally by MART. Further, by no later than fifteen days after the end of each calendar month, MART shall deliver, or cause to be delivered, to Kimco (x) a report which updates all leasing activity, (y) copies of notices of any offers to purchase, inquiries or letters of intent relating to any property owned by MART or any MART Subsidiary, and (z) such other information related to the MART Properties or reports as Kimco may reasonably request;
(ix) Shall, and shall cause the MART Subsidiaries to, take all action necessary to terminate any management contracts with Persons other than MART or the MART Subsidiaries relating to the MART Properties;
(x) Shall, and shall cause each MART Subsidiary to, conduct its operations and maintain its properties according to their usual, regular and ordinary course in substantially the same manner as heretofore conducted, subject to clauses (xi)-(xxviii) below;
(xi) Shall not, and shall cause each MART Subsidiary not take to, (a) acquire, enter into an option to acquire or exercise an option or contract to acquire (except for the current development projects at Villages at Urbana in Urbana, Maryland and Dover Square in Dover, Delaware under agreements listed on Section 5.23 of the MART Disclosure Letter), additional real property, encumber assets or commence construction of, or enter into any action that would reasonably be expected agreement or commitment to materially prevent develop or delay construct, shopping centers or any other type of real estate projects (including, but not limited, to options to purchase real property listed in Section 5.24 of the Closing.
MART Disclosure Letter) or (b) Subject to incur additional indebtedness (including, without limitation, draw on the exceptions contained in clauses (irevolving line of credit, prepayments or refinancings of any existing indebtedness or amend any existing indebtedness) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser Kimco (which consent shall not be unreasonably withheld); provided, conditioned however, that MART may draw up to an aggregate $2,000,000 on its revolving line of credit for working capital purposes as well as such additional funds in compliance with the Pro Forma Budgets as are necessary for completion of construction of, or delayed)acquisition of, such Seller shall notthe projects currently under development at Villages at Urbana in Urbana, Maryland, Dover Square in Dover, Delaware, Shrewsbury Square in Shrewsbury, Pennsylvania, Skyline Village in Harrisonburg, Virginia, Greenbrier Shopping Center (Phase III) in Bel Air, Maryland, Smoketown Plaza in Woodbridge, Virginia and Lutherville Station in Lutherville, Maryland, in any case in compliance with Section 7.2(viii) hereof;
(xii) Shall not amend its charter or bylaws, and shall cause each MART Subsidiary not permit any of the Key Subsidiaries (and to amend its charter, bylaws, joint venture documents, partnership agreements or equivalent documents, in the case of clauses (i)each case, (ix), except as contemplated by this Agreement;
(xiii) or Shall not (xvi)A) except pursuant to the exercise of options, shall not permit warrants, conversion rights and other contractual rights existing on the date hereof and disclosed pursuant to this Agreement, issue any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contractof its shares, including under the UST Credit FacilitiesMART DRSPP effect any share split, without obtaining reverse share split, share dividend, recapitalization or other similar transaction, (B) grant, confer or award any option, warrant, deferred stock unit, conversion right or other right not existing on the prior approval date hereof to acquire any of its shares of beneficial interest, (C) increase any compensation or enter into or amend any employment agreement with any of its executive officers or trustees, (E) grant any bonuses (x) other than in the ordinary course of business and consistent with past practice, to any of its employees, or (y) to any of its executive officers or trustees, or (D) adopt any new employee benefit plan (including any stock option, stock benefit or stock purchase plan) or amend any existing employee benefit plan in any material respect, except for changes which are less favorable to participants in such action from Sponsorplans;
(iixiv) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain Shall not (including upon conversion, exchange or exercise) any such Equity Interests;
(iiiA) declare, set aside or pay any dividend or make any other distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value payment with respect to any Equity Interest of Seller its Shares or allow any Key Subsidiary)of the MART Subsidiaries (including, without limitation, the MART LP) to pay or make any distribution or dividend, other than corresponding regular quarterly distributions payable to OP Unit Holders in an amount per OP Unit not to exceed the amount payable to the shareholders of MART in such quarter, payable at the same time as such dividends, or (B) directly or indirectly redeem, purchase or otherwise acquire any of its shares of beneficial interest or capital stock or partnership or other interest of any of the MART Subsidiaries, or make any commitment for any such action, except for dividends the redemption of MART LP Units in accordance with the terms of the MART LP Agreement as it may be modified by any of the Contribution Agreements listed on Section 5.3(a) of the MART Disclosure Letter or any Convertible Debentures in accordance with the terms of the trust indenture dated September 9, 1993;
(xv) Shall not, and distributions among shall not permit any of the Purchased MART Subsidiaries to, sell, lease or otherwise dispose of (A) any MART Property or any portion thereof or any of the capital stock of or partnership or other interests in any of the MART Subsidiaries or (B) except in the ordinary course of business, any of its other assets; provided, however, that MART may enter into bona fide leases, in arms-length transactions with third parties, on market rates, terms and conditions, which do not violate any exclusives or restrictions, and which do not include tenant improvement allowances or leasing commissions in excess of $25,000; provided, further, that MART shall promptly (but in any event within forty-eight hours) notify Kimco in writing whenever MART enters into any such lease; provided, further MART shall not enter into any letters of intent for leases relating to tenants occupying more than 5,000 square feet of a MART Property or enter into leases for space in excess of 10,000 square feet without the prior consent of Kimco, provided that such consent shall be deemed granted if Kimco has not responded favorably or unfavorably to a request for such a consent within three business days of receiving the proposed letter of intent;
(xvi) Shall not, and shall not permit any of the MART Subsidiaries to, make any loans, advances or capital contributions to, or investments in, any other Person;
(xvii) Shall not, and shall not permit any of the MART Subsidiaries to, 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 ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of MART included in the MART Reports or incurred in the ordinary course of business consistent with past practice or arising from the transactions contemplated by this Agreement;
(xviii) Except as specified in the Budget and the Pro Forma Budget, shall not, and shall not permit any of the MART Subsidiaries to, enter into any Commitments (other than those specifically covered by other sections of this Section 7.2) which may result in total payments or liability by or to all such entities in excess of $50,000 per Commitment or $200,000 in the aggregate, except for (A) the renewal of casualty and property insurance held by MART in the ordinary course of business with coverage no less than MART currently has and premiums at market competitive rates, and all such policies shall include early cancellation on a pro-rated basis and be subject to no more than a 25% minimum earned premium and (B) as may be required in connection with the redemption of any OP Units or the redemption of any Convertible Debentures;
(xix) Shall not, and shall not permit any of the MART Subsidiaries to, enter into or amend or otherwise modify any agreement or arrangement with any officer, trustee, director, consultant or affiliate of MART or any of the MART Subsidiaries;
(ivxx) directly Shall not, without prior notification and consultation with Kimco, terminate any employee under circumstances which would result in severance payments to such employee or indirectly, purchase, redeem or otherwise acquire pay any Equity Interests or severance benefits to any rights to acquire any Equity Interests employee on account of any Seller or Key Subsidiarysuch employee's termination;
(vxxi) materially Shall maintain in full force and effect fire and extended coverage casualty insurance on the MART Properties as shown in Section 5.12 of the MART Disclosure Letter and all other insurance listed in Section 5.28 of the MART Disclosure Letter and make claims in due course, including claims under the pollution legal liability policy for the releases at Enchanted Forest, Xxxxxxx and Patriot properties;
(xxii) Shall not, and shall not permit any of the MART Subsidiaries to, forgive any existing indebtedness to MART or any MART Subsidiary, guarantee the indebtedness of another Person, enter into any agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing or make any investments in any other Person in excess of $50,000 in the aggregate, other than a MART Subsidiary in the ordinary course of business;
(xxiii) Shall not, and shall not permit any of the MART Subsidiaries to, make or rescind any election relating to Taxes (unless MART reasonably determines, after prior consultation with Kimco, that such action is required by applicable law or necessary to preserve MART's status as a REIT or the partnership status of MART LP or any other MART Subsidiary which files Tax Returns as a partnership for Federal tax purposes, or the status of any MART Subsidiary as a "qualified REIT subsidiary" or "taxable REIT subsidiary" as such terms are defined in Section 856 of the Code);
(xxiv) Shall not: (A) change any of its financial methods, principles or practices of accounting policies in effect other than as required by GAAP or procedures (B) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, except in the case of settlements or compromises relating to Taxes on real property or sales Taxes in an amount not to exceed, individually or in the aggregate, $100,000, or change any of its methods of reporting incomeincome or deductions for federal income tax purposes from those employed in the preparation of its federal income Tax Return for the taxable year ended December 31, deductions or other material items for financial accounting purposes2001, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by the SEC, applicable Law law or TARP or under GAAP;
(xxv) Subject to any enhanced restrictions on executive compensation agreed existing contractual insurer requirements, shall give Kimco the opportunity to by Sellers and Sponsor, (A) increase participate in the compensation or benefits defense of any Employee derivative, class action claims or other claims by securityholders of Sellers MART or any Purchased MART Subsidiary against MART and/or its trustees arising out of or in connection with any of the transactions contemplated by this Agreement and MART shall not settle any such claim without the approval of Kimco, which approval shall not be unreasonably withheld;
(except for increases in salary xxvi) Shall not enter into or wages in amend or otherwise modify any agreement or arrangement with persons that are affiliates or, as of the Ordinary Course date of Business with respect to Employees who this Agreement, are not current or former directors or officers of Sellers or Seller Key Personnel)officers, (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers trustees or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan MART or any change MART Subsidiary without prior written notice to Kimco and the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part approval of a settlement majority of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course "independent" members of Business or with respect to obligations the Board of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course Trustees of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit PlanMART;
(xixxvii) modifyShall not, amendand shall not permit any of the MART Subsidiaries to, terminate except as otherwise permitted or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in this Agreement, authorize, recommend, propose or announce an intention to adopt a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course plan of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidationliquidation or dissolution of MART or any of the MART Subsidiaries; and
(xxviii) Shall not, dissolutionand shall not permit any of the MART Subsidiaries to, merger, consolidation, restructuring, reorganization agree in writing or in otherwise to take any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan action inconsistent with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Mid Atlantic Realty Trust), Merger Agreement (Kimco Realty Corp)
Conduct of Business. (a) Except as (i) otherwise as expressly contemplated permitted by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on as set forth in the Magellan Disclosure Schedule, including Section 6.2 4.2(a) of the Sellers’ Magellan Disclosure Schedule; , (iii) approved as required by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); Applicable Law or (iv) required as agreed to in writing by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser One Stone (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), such Seller during the period from the date of this Agreement until the Closing, Magellan shall notcause each of Poplar and Utah CO2 and, if formed pursuant to Section 4.9(f), Newco, to (A) conduct its business in the ordinary course of business consistent with past practice, (B) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees, and shall not permit any (C) use commercially reasonable efforts to comply in all material respects with all Applicable Laws and the requirements of all Material Contracts. Without limiting the generality of the Key Subsidiaries foregoing, except (and 1) as expressly permitted by this Agreement, (2) as set forth in the case Magellan Disclosure Schedule, including Section 4.2(a) of clauses the Magellan Disclosure Schedule, (i3) as required by Applicable Law or (4) as agreed in writing by the Parties, during the period from the date of this Agreement to the Closing, Magellan shall cause each of Poplar and Utah CO2 and, if formed pursuant to Section 4.9(f), (ix)Newco, (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take (A) issue, sell, grant, pledge, transfer, encumber, dispose of, accelerate the vesting of or modify, as applicable, any action with of its Securities, or any Securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any Securities or any other agreements of any character to purchase or acquire any of its Securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any of the foregoing; (B) redeem, purchase or otherwise acquire any of its outstanding Securities, or any rights, warrants, options, calls, commitments or any other agreements of any character to acquire any of its Securities; (C) declare, set aside for payment or pay any dividend on, or make any other distribution in respect of, any Securities, or otherwise make any payments to which its equityholders in their capacity as such; or (D) split, adjust, combine, subdivide or reclassify any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from SponsorSecurities;
(ii) issue(A) incur, sell, pledge, create an Encumbrance refinance or otherwise dispose assume any indebtedness for borrowed money (or modify any of or authorize the issuance, sale, pledge, Encumbrance or disposition material terms of any Equity Interests of the Transferred Entities, such outstanding indebtedness) or grant guarantee any such indebtedness for borrowed money (or enter into a “keep well” or similar agreement with respect to such indebtedness) or issue or sell any debt securities or options, warrants warrants, calls or other rights to purchase or obtain (including upon conversionacquire any debt securities of Poplar, exchange or exercise) any such Equity InterestsUtah CO2 or, if formed pursuant to Section 4.9(f), Newco;
(iii) declaresell, set aside transfer, lease, farmout, exchange, convey, license or pay otherwise dispose of any dividend of the Poplar Properties with a fair market value in excess of $50,000, in the aggregate, without consultation and consent of One Stone, which consent shall not be unreasonably withheld, delayed or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary)conditioned, except for dividends (1) dispositions of obsolete or worthless equipment which is replaced with equipment and distributions among materials of comparable or better value and utility, or (2) transactions (including sales of oil, natural gas, natural gas liquids and other produced Hydrocarbons) in the Purchased Subsidiariesordinary course of business consistent with past practice;
(iv) directly make any capital expenditure or indirectlycapital expenditures (which shall include, purchaseany investments by contribution to capital, redeem property transfers, purchase of Securities or otherwise acquire otherwise) in excess of $50,000, in the aggregate for any Equity Interests fiscal year, without consultation and consent of One Stone, which consent shall not be unreasonably withheld, delayed or conditioned, except for any rights such capital expenditures set forth in Section 4.2(a)(iv) of the Magellan Disclosure Schedule, or except as may be reasonably required to acquire conduct emergency operations, repairs or replacements on any Equity Interests of any Seller well, pipeline, or Key Subsidiaryother facility, provided that such expenditures shall not exceed $50,000 in the aggregate;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted set forth in the Magellan Disclosure Schedule, directly or indirectly acquire (A) by GAAP, a SEC rule, regulation merging or policy or applicable Lawconsolidating with, or as modified by Parent as purchasing all of or a result substantial equity interest in, or by any other manner, any Person or division, business or equity interest of any Person, or (B) except in the filing ordinary course of the Bankruptcy Casesbusiness consistent with past practice, any assets;
(vi) adopt make any amendments loans or advances to its Organizational Documents or permit any Person (other than trade credit granted in the adoption ordinary course of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereofbusiness consistent with past practice);
(viiA) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course ordinary course of Business business consistent with past practice, enter into any contract or pursuant to agreement that would be a Material Contract or hedge agreement if in existence as of the date hereof (or entered into in compliance with of this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility Agreement or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for except in the obligations ordinary course of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or business consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amendpast practice, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) amend in any material respect in a manner that is adverse to any Seller that is a party theretoMaterial Contract, other than in the Ordinary Course of Business;
or (xiiC) (1) waive any material rights under any Material Contract, (2) enter into or extend the term or scope of any Seller Material Contract other than as contemplated by that materially restricts Poplar, Utah CO2 or, if formed pursuant to Section 6.7;
(xiii) acquire (including by merger4.9(f), consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B)Newco, from engaging or competing in any line of business or in any geographic area;
, or (xvi3) enter into any Contracts for capital expendituresMaterial Contract that would be breached by, exceeding $100,000,000 or require the consent of any third party in order to continue in full force following, consummation of the aggregate in connection with any single project or group of related projectstransactions contemplated hereby;
(xviiviii) open except as required by Applicable Law, (A) change its fiscal year or reopen any major production facilitymethod of Tax accounting, (B) make, change or revoke any material Tax election, (C) settle or compromise any material liability for Taxes, (D) file any material amended Tax Return, (E) surrender any right to claim a refund of Taxes; and(F) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment; or (G) take any other action outside of the ordinary course of business that would have the effect of increasing the Tax liability of any Company for any period after the Effective Time;
(xviiiix) make any changes in financial accounting methods, principles or practices (or change an annual accounting period), except insofar as may be required by a change in GAAP or Applicable Law;
(x) amend its certificate of incorporation, bylaws, certificate of formation, limited liability company agreement or any other organizational documents;
(xi) adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or other reorganization;
(xii) fail to use commercially reasonable efforts to maintain, with financially responsible insurance companies, insurance in such amounts and against such risks and losses as is maintained by it at present;
(xiii) except as provided under any agreement entered into prior to the date of this Agreement and disclosed in the Magellan Disclosure Schedule, pay, discharge, waive, settle or satisfy any suit, action, claims or proceeding seeking damages or injunction or other equitable relief, that would, (A) require the payment of monetary damages or (B) involve any injunctive or other non-monetary relief which, in either case, imposes material restrictions on the business operations of Poplar, Utah CO2 or, if formed pursuant to Section 4.9(f), Newco, in each case, without the consultation and consent of One Stone, which consent shall not be unreasonably withheld, delayed or conditioned; or
(xiv) agree, in writing or otherwise, to take any of the foregoing actions, or take any action or agree, in writing or otherwise, to take any action which would in any material respect impede or delay the ability of the Parties to satisfy any of the conditions to the transactions contemplated hereby, other than as permitted in Section 4.3.
Appears in 2 contracts
Samples: Exchange Agreement (Magellan Petroleum Corp /De/), Exchange Agreement (Magellan Petroleum Corp /De/)
Conduct of Business. (a) Except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from From and after the date hereof to the earlier of (i) the termination of this Agreement and until the earlier of (ii) the Closing and Date, except (x) as otherwise expressly contemplated, permitted, or required by this Agreement (including as contemplated or required in connection with the termination Restructuring), (y) as Purchaser shall otherwise consent in writing (for purposes of this AgreementSection 5.2(a), Sellers shall such consent may be given by e-mail and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(aeffective upon receipt by Seller), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned, or (z) as set forth in Schedule 5.2(a) of the Seller Disclosure Letter, Seller covenants and agrees that it shall, and shall cause each Conveyed Company to, (i) conduct the Business only in the ordinary course of business consistent with past practice (subject to any restrictions set forth in Section 5.2(b)) and (ii) use commercially reasonable efforts to (A) maintain in all material respects its existence and all material rights, Permits, franchises, Technology, Intellectual Property and Contracts, in each case, pertaining to the Business, (B) maintain its books, accounts and records as they relate to the Business in accordance with past custom and practice, (C) preserve in all material respects its relationship with its customers and suppliers and retain in all material respects the services of its employees and service providers, in each case, with respect to the Business, (D) in the event of a condemnation, casualty, loss or other material damage to any of the assets of the Conveyed Companies prior to the Closing Date, either, following reasonable consultation with Purchaser, repair or replace, in all material respects, such condemned or damaged property through the use of the proceeds of such condemnation or insurance, or preserve such proceeds for use by such Conveyed Company, as applicable, following the Closing, and (E) continue to submit project bids and respond to customer requests for proposals with respect to the Business, in each case in the ordinary course of business and consistent with past practice, including by making use of Credit Support Instruments, in a manner consistent with past practice.
(b) Without limiting the generality of Section 5.2(a), from and after the date hereof to the earlier of (i) the termination of this Agreement and (ii) the Closing Date, except (A) as otherwise expressly contemplated, permitted, or required by this Agreement (including as contemplated or required in connection with the Restructuring), (B) as Purchaser shall otherwise consent in writing (for purposes of this Section 5.2(b), such Seller shall not, consent may be given by e-mail and shall be effective upon receipt by Seller), which consent shall not permit any of the Key Subsidiaries (and in the case of be unreasonably withheld, delayed or conditioned with respect to clauses (i), (ii), (v), (viii), (ix), (x), (xii), (xiii) and (xiv), and, to the extent relating to the foregoing, (xxi), or (xviC) as set forth in Schedule 5.2(b) of the Seller Disclosure Letter, Seller covenants and agrees that it shall (with respect to the Business), and shall not permit any Purchased Subsidiary) cause each Conveyed Company to:
(i) take not sell, lease, charter, license, abandon, permit to lapse, or otherwise dispose of any action with respect material assets or Technology or Intellectual Property used in the Business, except (A) in the ordinary course of the Business or (B) to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsoranother Conveyed Company;
(ii) issue, sell, pledge, create an Encumbrance not (A) increase or otherwise dispose of enhance the compensation or authorize the issuance, sale, pledge, Encumbrance or disposition benefits of any Equity Interests of the Transferred Entities, Conveyed Company Employee or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller Additional Business Employee or any Key Subsidiary without receipt former employee of fair value with respect to any Equity Interest of Seller a Conveyed Company or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or Business other material items for financial accounting purposes, except than as permitted required by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or required pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee any Material Contract or Business Benefit Plan and Policy (as in effect on the date hereof and set forth on Section 4.10 (or pursuant to any amendment required by Law), or under the annual merit increase cycle in the ordinary course of business consistent with past practice, (B) establish, enter into, adopt, amend or terminate, or increase or accelerate or commit to increase or accelerate the funding, payment or vesting of the Sellers’ Disclosure Schedule)compensation or benefits provided under, any Assumed Business Benefit Plan (or any other benefit or compensation plan, agreement, Contract, program, policy or arrangement that would be a Business Benefit Plan if in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or other than as may be required by applicable Law or TARP pursuant to the terms of any Contract that has been disclosed on Schedule 3.14(a) of the Seller Disclosure Letter or Business Benefit Plan as in effect on the date hereof (or any amendment required by Law) or, with respect to any Business Benefit Plan that is not a Conveyed Company Benefit Plan, changes that are also generally applicable to employees of Seller and its Affiliates (other than or in addition to the Conveyed Company Employees) in such Business Benefit Plan, (C) except to the extent required by applicable Law or by written agreements existing on the date of this Agreement that have been disclosed on Schedule 3.14(a) of the Seller Disclosure Letter, enter into or amend any Contracts of employment or any consulting, bonus, severance, retention, change in control, retirement or similar agreement, in each case, with respect to the Business, except for employment agreements or offer letters for any newly hired officer, director, employee or other service provider of each Conveyed Company in the ordinary course of business with an annual base salary and incentive compensation opportunity not to exceed $150,000, (D) hire, materially modify the job responsibility of, or terminate (other than for “cause”) any officer, director, employee or other service provider of each Conveyed Company with an annual compensation in excess of $150,000, (E) implement any employee layoffs with respect to the Business that would trigger notice obligations under the WARN Act, or (F) unless required by Law, recognize or certify any enhanced restrictions on executive compensation agreed labor union, labor organization, works council, or group of employees as the bargaining representative for any Current Business Employee or individual providing services to by Sellers any Conveyed Company or the Business;
(iii) not change, amend or restate the charter, certificate of formation or incorporation, operating agreement or bylaws (or other comparable organizational or governing documents) of any Conveyed Company;
(iv) not authorize for issuance, issue, sell or deliver or agree or commit to issue, sell or deliver (A) any capital stock of, or other equity or voting interest in, any Conveyed Company or (B) any securities convertible into, exchangeable for or evidencing the right to subscribe for or acquire either (1) any capital stock of, or other equity or voting interest in, any Conveyed Company or (2) any securities convertible into, exchangeable for or evidencing the right to subscribe for or acquire, any shares of the capital stock of, or other equity or voting interest in, any Conveyed Company;
(v) not (A) change, modify, or write-off as uncollectible any notes or accounts receivable of the Business, except write-offs in the ordinary course of the Business and Sponsorany write-off of such notes and accounts receivable that are fully reserved for in a manner consistent with Accounting Principles, (B) accelerate any accounts receivable of the Business or defer any accounts payable of the Business, in each case outside of the ordinary course of business, or take any other action outside of the ordinary course of business with respect to the working capital of the Business, (C) make any material change in the terms of sale or collection practices of the Business, nor (D) materially alter its practices with respect to inventory levels or the product offerings of the Business;
(vi) not split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares of capital stock or other securities of any of the Conveyed Companies;
(vii) not (A) incur any Indebtedness, other than short-term Indebtedness for borrowed money under existing credit facilities, or (B) make any loans or advances to any other Person, other than routine advances to employees in the ordinary course of the Business;
(viii) other than in the ordinary course of business, consistent with past practice, not, (A) increase make, change or revoke any material Tax election or make any material change to an accounting method for Tax purposes (including any election under Section 965 of the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key PersonnelCode), (B) grant settle or compromise any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel)material Tax liability, (C) establish, adopt, enter into, amend or terminate file any Benefit Plan (including any change to any actuarial amended Income Tax Return or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such planmaterial Tax Return, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in surrender any material respect in claim for a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actions.Tax refund,
Appears in 2 contracts
Samples: Stock Purchase Agreement (TE Connectivity Ltd.), Stock Purchase Agreement
Conduct of Business. (a) Except During the period from the date hereof to the Closing, except as (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with as PCA shall otherwise agree in writing in advance, TPI shall conduct the consummation of Containerboard Business in the ordinary and usual course. During the period from the date hereof to the Closing, (C) use reasonable best efforts to preserve except as otherwise expressly provided for in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with them, (D) not take any action to cause any of Sellers’ representations and warranties set forth in ARTICLE IV to be untrue in any material respect as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written or as PCA shall otherwise consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller with respect to the Containerboard Business, the Contributed Assets or the Assumed Liabilities other than in the ordinary and usual course or as set forth in Schedule 5.2, TPI shall not, and shall not permit any of the Key Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:
(ia) take any action with respect enter into commitments for new capital expenditures in excess of $10,000,000 in the aggregate to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining extent not otherwise contemplated in the prior approval of such action from Sponsor1999 business plan for the Containerboard Business;
(iib) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize otherwise transfer, or incur, create or assume any Encumbrance (other than Permitted Encumbrances) on (i) any individual fixed asset of the issuanceContainerboard Business if the greater of the book value or the fair market value of such fixed asset exceeds $1,000,000, or (ii) any group of fixed assets of the Containerboard Business if the greater of the book value or the fair market value of such fixed assets, taken as a whole and which in the aggregate during such period, exceeds $2,500,000, and such dispositions or transfers, in either case, are in the ordinary course of business;
(c) institute any material change in the methods of purchase, sale, pledgelease or accounting or engage in any activity which would accelerate the collection of TPI's accounts or notes receivable, Encumbrance or disposition of any Equity Interests delay the payment of the Transferred EntitiesTPI's accounts payable, or grant any options, warrants reduce or other rights to purchase or obtain otherwise restrict the amount of Inventory (including upon conversionraw material, exchange packaging, work-in-process, or exercisefinished goods) any such Equity Interestson hand;
(iiid) declareacquire (by merger, set aside exchange, consolidation, acquisition of stock or pay assets or otherwise) any dividend or make any distribution (whether in cashcorporation, securities partnership, joint venture or other property business organization or by allocation of additional Indebtedness to any Seller division or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization assets thereof;
(viie) sell, pledge, lease, transfer, assign or dispose grant licenses of any Purchased Asset or permit any Purchased Asset to become subject Intellectual Property to any EncumbrancePerson or allow registered Intellectual Property to lapse, expire or become abandoned;
(f) amend any Contributed Subsidiary's certificate of incorporation, bylaws or other charter documents;
(g) grant (or agree to grant) any salary or wage increases or (as it relates to employees of the Containerboard Business) materially change or amend any employee benefit or welfare plan, other than a Permitted Encumbrance, in each case, except pursuant to renegotiation of any collective bargaining agreements in the Ordinary Course normal course; or
(h) make any loans or advances to, guarantees for the benefit of Business or pursuant investments in any Person, other than intercompany loans to a Contract in existence as Affiliates of the date hereof (or entered into in compliance with this Section 6.2)TPI;
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviiii) agree, in writing or otherwise, to take do any of the foregoing actionsor to take any other action which would be required to be disclosed in Schedule 3.6(e);
(j) enter into any transactions with Affiliates not in the ordinary course of business consistent with past practice; and
(k) enter into any Contracts required to be disclosed hereunder, other than timber leases, cutting rights agreements, and similar agreements entered into in the ordinary course of business at fair value consistent with past practices. TPI will:
(a) use its commercially reasonable efforts to (A) preserve intact the organization and goodwill of the Containerboard Business, (B) keep available the services of its officers and employees as a group (provided that such efforts shall not require TPI to pay any bonuses or other amounts beyond normal compensation to such persons), (C) maintain satisfactory relationships with its material suppliers and customers and other Persons having business relationships with it, and (D) maintain all Governmental Authorizations;
(b) maintain its facilities and assets in good condition and repair and replace its facilities and assets in a manner consistent with past practices and make capital expenditures in the ordinary course of business in an aggregate amount consistent with the 1999 Annual Operating Plan; and
(c) notify PCA of any emergency or other change in the normal course of the Containerboard Business or in the condition of the Contributed Assets or the Assumed Liabilities or the operation of the Containerboard Business and of any governmental or third party complaint, investigation or hearing (or communication indicating that such a complaint, investigation or hearing is or may be contemplated), if such emergency, change, complaint, investigation or hearing could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Contribution Agreement (Tenneco Inc /De), Contribution Agreement (Pca Valdosta Corp)
Conduct of Business. (a) Except as set forth on Schedule 8.1, the Company shall (i) otherwise expressly contemplated by or permitted under this Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting from any changes to applicable Laws, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, Sellers shall and shall cause each Purchased Subsidiary its Subsidiaries to) continue to (A) conduct their operations in take such action necessary to operate the Ordinary Course of Business, (B) not take any action inconsistent with this Agreement or with the consummation of the Closing, (C) use reasonable best efforts to preserve Company Business in the Ordinary Course of Business and to maintain their properties in all material respects the present Ordinary Course of Business and shall use commercially reasonable efforts consistent with past practices to (i) preserve their relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers suppliers, lenders and others other Persons having significant material business dealings relationships with themthem and (ii) manage their working capital in the Ordinary Course of Business. Notwithstanding the foregoing, except (Di) not take any action to cause any for purposes of Sellers’ representations and warranties satisfying the closing conditions set forth in ARTICLE IV Article VII (ii) as set forth on Schedule 8.1, or (iii) as required (including by virtue of being an express condition to be untrue in any material respect Closing) or as of any such date when such representation or warranty is made or deemed to be made and (E) not take any action that would reasonably be expected to materially prevent or delay explicitly permitted by the Closing.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination terms of this Agreement, without the prior written consent of Purchaser (which for the avoidance of doubt may be delivered in the form of an email or other writing) of the Buyer Parties (such consent shall not to be unreasonably withheld, conditioned or delayed), such Seller the Company shall not, (and shall not permit any of the Key cause its Subsidiaries (and in the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:):
(i) take not amend or otherwise alter (or propose any action with respect to which amendment or alteration to) the Governing Documents of any Seller has granted approval rights to Sponsor under any Contract, including under of the UST Credit Facilities, without obtaining the prior approval of such action from SponsorTarget Companies;
(ii) issue, sell, pledge, not (A) create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of issue any Equity Interests of the Transferred EntitiesCommitments, or grant any options, warrants redeem or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem repurchase or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests Interests, of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a splitTarget Companies, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrancein either case, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are compensation arrangements, or (B) make any distribution of any Equity Interests of the Company;
(iii) not current make any sale, assignment, transfer, abandonment, or former directors other conveyance of any material asset (other than in the Ordinary Course of Business) used in the Company Business or officers any Material Contract (other than any Company Agreement);
(iv) not create or permit to be created any Encumbrance (other than a Permitted Encumbrance) on any asset of Sellers the Target Companies other than in the Ordinary Course of Business or Seller Key Personnelas contemplated in this Agreement;
(v) except as otherwise provided in Sections 8.1(a)(xiii) and 8.1(a)(xiv), not enter into or amend, modify, extend, renegotiate or terminate any Material Contract (as defined solely in subsections (i) through (xvi) of Section 3.9(c)) other than any such amendment, modification, extension, renegotiation or termination that is entered into in the Ordinary Course of Business and is not material;
(vi) not change any method of accounting or accounting principle that relates to the Target Companies;
(vii) except as expressly required by applicable Legal Requirement, not make or change any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method with respect to Taxes, file any amended Tax Return, settle or compromise any proceeding with respect to any Tax claim or assessment relating to the Target Companies (other than in the Ordinary Course of Business), surrender any right to claim a refund of any Taxes, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment relating to the Target Companies, if such election, change, adoption, amendment, settlement, compromise, surrender, or consent would have the effect of increasing the Tax liability of any Target Company for any taxable period (or portion thereof) beginning after the Closing Date or decreasing any Tax attribute of any Target Company existing on the Closing Date;
(viii) not purchase or otherwise acquire (x) any assets whether in one transaction or a series of related transactions for an aggregate purchase price exceeding $3,000,000, or (y) except in connection with any mandatory contribution to any JV, any Equity Interest in an amount exceeding $3,000,000;
(ix) not make any capital expenditure that would result in aggregate capital expenditures from October 1, 2013 through the Closing Date to be in material excess of the amounts set forth on Schedule 1.1(d);
(x) except as disclosed on Schedule 8.1(a)(x), other than as required by applicable Legal Requirements, the terms of any Group Plan, as currently in effect, or in the Ordinary Course of Business consistent with past practice: (A) not materially alter the total compensation of any Employee with an annual base salary of $250,000 or greater (a “Designated Employee”), (B) not grant any severance or termination pay to any Employee other than in accordance with Section 8.5(e) and except as may be required pursuant to the terms of Sellers any Group Plan or any Purchased Subsidiary other written agreement in effect on the date hereof or except for to pay severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect termination benefits to Employees who are not current or former officers or directors in the Ordinary Course of Sellers or Seller Key Personnel)Business, (C) not establish, adopt, enter into, amend or terminate any Benefit Company Plan (including any change to any actuarial other than (1) as may be required by the terms of an existing Company Plan or other assumption used to calculate funding obligations (2) with respect to any Benefit Company Plan if the establishment, adoption, execution, amendment or termination of such Company Plan does not otherwise affect any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determinedEmployee), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) not grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise awards to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit PlanEmployee;
(xi) modifymaintain insurance coverage on the assets of the Target Companies in the amounts and of the types currently in force or, amendupon renewal thereof, terminate in similar amounts and types to the extent then available on similar terms and commercially reasonable prices;
(xii) use commercially reasonable efforts to maintain all material Government Authorizations in effect on the date hereof and necessary or waive required for the ownership and operation of the Company Business as currently conducted;
(xiii) not cause or request any rights Person to issue any letter of credit on behalf of any Target Company if as a result of such issuance the total face amount of all letters of credit outstanding on behalf the Target Companies under any Affiliate Contract or Seller Material Contract the ABL exceeds $350 million;
(except for any dealer sales and service Contracts or as contemplated by Section 6.7xiv) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xiiBusiness in connection with any capital expenditures reflected in Schedule 1.1(d) enter into or any Seller Material Contract other than as contemplated repairs or maintenance by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoingTarget Companies, not post any bond or guarantee;
(xv) enter into any Contract that limits not waive, compromise, or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in settle any material respect (A) Purchaser claim involving or against any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;Target Companies; or
(xvi) enter into not take any Contracts for capital expenditures, exceeding $100,000,000 action to do or engage (or commit to do or engage) in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionsforegoing.
(b) Other than the consent rights set forth in Section 8.1(a), nothing contained in this Agreement shall be deemed to give any Buyer Party, directly or indirectly, the right to control or direct any of the Target Companies’ operations prior to the Closing. Prior to the Closing and subject to the consent rights set forth in Section 8.1(a), the Seller Parties shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over Target Companies’ respective operations.
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Samples: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement (NGL Energy Partners LP)
Conduct of Business. (a) Except as expressly contemplated, required or permitted by any Transaction Document or any Collaboration Document, or as required by any Governmental Authority or by applicable Laws, or as requested in writing by the Investor:
(i) otherwise expressly contemplated by or permitted under this Agreement, including during the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’ Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other Governmental Authority in connection with any other bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or resulting period commencing from any changes to applicable Laws, from and after the date of this Agreement hereof and until ending on the earlier of (x) the Closing Date and (y) the termination of this AgreementAgreement pursuant to Section 6.1, Sellers shall the Company shall, and shall cause each Purchased Subsidiary of its Subsidiaries to (A) use their respective reasonable best efforts to conduct their respective business and operations in the Ordinary Course ordinary course of Business, business consistent with past practice in all material respects; (B) not take any action inconsistent with this Agreement action, or with omit to take any action, that would, individually or in the aggregate, reasonably be likely to prevent, materially delay or materially impede the consummation of the Closing, Share Issuance; and (C) use their respective reasonable best efforts to preserve in continue the listing and trading of the Company’s ADSs on the NYSE and the Company’s Class A Ordinary Course Shares on the HKEX;
(ii) during the period commencing from the date hereof and ending on the earliest of Business and in all material respects (x) the present relationships of Sellers and each of their Subsidiaries with their respective customers, suppliers and others having significant business dealings with themClosing Date, (Dy) the termination of this Agreement pursuant to Section 6.1 and (z) the execution of the Platform and Software Collaboration Agreement, the Company shall not take any action to cause (A) refresh the 2023 General Mandate, or (B) seek or obtain any consent of Sellers’ representations the shareholders of the Company at any general meeting in relation to the issue of shares, securities convertible into shares, or options, warrants or similar rights to subscribe for any shares or such convertible securities in the Company; and
(iii) during the period commencing from the Determination Date and warranties set forth in ARTICLE IV to be untrue in any material respect as ending on the earlier of any such date when such representation or warranty is made or deemed to be made (x) the Closing Date and (Ey) not take the termination of this Agreement pursuant to Section 6.1, the Company shall not, directly or indirectly (A) alter the capital structure of the Company resulting in reduction in its total issued and outstanding share capital or (B) purchase or redeem any action that share capital of the Company, in each case of (A) and (B), if it would reasonably be expected result in the Investor becoming a “connected person” of the Company (as such term is defined in the Hong Kong Listing Rules from time to materially prevent or delay time) immediately following the Closingconsummation of the Share Issuance.
(b) Subject to the exceptions contained in clauses (i) through (iv) of Section 6.2(a), each Seller agrees that, from and after the date of this Agreement and until the earlier of the Closing and the termination of this Agreement, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), such Seller shall notThe Company shall, and shall not permit any cause its relevant Subsidiaries to, use its reasonable efforts to obtain the international standard for environmental management systems certification (ISO 14001:2015) in respect of the Key Subsidiaries its manufacturing bases located in Guangzhou, Guangdong Province and Wuhan, Hubei Province (and as referred to in the case of clauses (i), (ix), (xiiiCompany Public Filings) or (xvi), shall not permit any Purchased Subsidiary) to:
(i) take any action with respect to which any Seller has granted approval rights to Sponsor under any Contract, including under the UST Credit Facilities, without obtaining the prior approval of such action from Sponsor;
(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity Interests of the Transferred Entities, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests;
(iii) declare, set aside or pay any dividend or make any distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value with respect to any Equity Interest of Seller or any Key Subsidiary), except for dividends and distributions among the Purchased Subsidiaries;
(iv) directly or indirectly, purchase, redeem or otherwise acquire any Equity Interests or any rights to acquire any Equity Interests of any Seller or Key Subsidiary;
(v) materially change any of its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as permitted by GAAP, a SEC rule, regulation or policy or applicable Law, or soon as modified by Parent as a result of the filing of the Bankruptcy Cases;
(vi) adopt any amendments to its Organizational Documents or permit the adoption of any amendment of the Organizational Documents of any Key Subsidiary or effect a split, combination or reclassification or other adjustment of Equity Interests of any Purchased Subsidiary or a recapitalization thereof;
(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased Asset or permit any Purchased Asset to become subject to any Encumbrance, other than a Permitted Encumbrance, in each case, except in the Ordinary Course of Business or pursuant to a Contract in existence as of the date hereof (or entered into in compliance with this Section 6.2);
(viii) (A) incur or assume any Indebtedness for borrowed money or issue any debt securities, except for Indebtedness for borrowed money incurred by Purchased Subsidiaries under existing lines of credit (including through the incurrence of Intercompany Obligations) to fund operations of Purchased Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for Indebtedness for borrowed money among any Seller and Subsidiary or among the Subsidiaries;
(ix) discharge or satisfy any Indebtedness in excess of $100,000,000 other than the discharge or satisfaction of any Indebtedness when due in accordance with its originally scheduled terms;
(x) other than as is required by the terms of a Parent Employee Benefit Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree Settlement Agreement or as may be required by applicable Law or TARP or under any enhanced restrictions on executive compensation agreed to by Sellers and Sponsor, (A) increase the compensation or benefits of any Employee of Sellers or any Purchased Subsidiary (except for increases in salary or wages in the Ordinary Course of Business with respect to Employees who are not current or former directors or officers of Sellers or Seller Key Personnel), (B) grant any severance or termination pay to any Employee of Sellers or any Purchased Subsidiary except for severance or termination pay provided under any Parent Employee Benefit Plan and Policy or as the result of a settlement of any pending Claim or charge involving a Governmental Authority or litigation with respect to Employees who are not current or former officers or directors of Sellers or Seller Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit Plan (including any change to any actuarial or other assumption used to calculate funding obligations with respect to any Benefit Plan or any change to the manner in which contributions to any Benefit Plan are made or the basis on which such contributions are determined), except where any such action would reduce Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any Benefit Plan (including any equity or equity-based awards), (E) increase or promise to increase or provide for the funding under any Benefit Plan, (F) forgive any loans to Employees of Sellers or any Purchased Subsidiary (other than as part of a settlement of any pending Claim or charge involving a Governmental Authority or litigation in the Ordinary Course of Business or with respect to obligations of Employees whose employment is terminated by Sellers or a Purchased Subsidiary in the Ordinary Course of Business, other than Employees who are current or former officers or directors of Sellers or Seller Key Personnel or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to accelerate the time of payment or vesting of any compensation or benefits under any Benefit Plan;
(xi) modify, amend, terminate or waive any rights under any Affiliate Contract or Seller Material Contract (except for any dealer sales and service Contracts or as contemplated by Section 6.7) in any material respect in a manner that is adverse to any Seller that is a party thereto, other than in the Ordinary Course of Business;
(xii) enter into any Seller Material Contract other than as contemplated by Section 6.7;
(xiii) acquire (including by merger, consolidation, combination or acquisition of Equity Interests or assets) any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeds $100,000,000;
(xiv) alter, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Key Subsidiary, or adopt or approve a plan with respect to any of the foregoing;
(xv) enter into any Contract that limits or otherwise restricts or that would reasonably be expected to, after the Closing, restrict or limit in any material respect (A) Purchaser or any of its Subsidiaries or any successor thereto or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of clause (A) or (B), from engaging or competing in any line of business or in any geographic area;
(xvi) enter into any Contracts for capital expenditures, exceeding $100,000,000 in the aggregate in connection with any single project or group of related projects;
(xvii) open or reopen any major production facility; and
(xviii) agree, in writing or otherwise, to take any of the foregoing actionspracticable.
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