Conduct of Companies. (a) Except (i) to the extent required by any applicable Law or Contract, (ii) as otherwise expressly contemplated by this Agreement, (iii) as set forth in Section 6.1(a) of the Company Disclosure Schedule, or (iv) as consented to in writing by Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date hereof until the earlier of the Closing Date and the date this Agreement is terminated pursuant to Article IX, (A) each Company shall use its commercially reasonable efforts to conduct its business and operations in the ordinary course (and shall cause the Company Subsidiaries to use their commercially reasonable efforts to conduct their business and operations in the ordinary course) and (B) each Company will not (and will not permit or cause any Company Subsidiary to): (i) modify or amend any of its Organizational Documents; (ii) issue, sell or otherwise permit to become outstanding any limited liability company interests, ordinary shares or other equity interests (as applicable), or split, combine, reclassify, repurchase or redeem any limited liability company interests, ordinary shares or other equity interests (as applicable); (iii) acquire by merging or consolidating with, or by purchasing an equity interest in or substantial portion of the assets of, any Person, corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof; (iv) create any new Subsidiary of a Company or any Company Subsidiary; (v) create, incur, assume or otherwise become liable with respect to any item of Indebtedness included in subparts (a) through (h) of the Indebtedness definition, except for draws in the ordinary course of business on the credit facility disclosed in Section 4.8(b) of the Company Disclosure Schedule; (vi) divest, sell or otherwise dispose of, or encumber any material asset, other than in the ordinary course of business; (vii) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization; (viii) (1) enter into or adopt or amend or terminate any Plan (or arrangement that would have been a Plan had it been in existence on the date hereof), (2) enter into a Company Employment Contract that provides for a base salary or severance amount, as applicable, of more than $150,000 or (3) materially increase the salary or target annual incentive compensation opportunity payable to any Company employee at the manager level or above except, in any such case, (x) to the extent required by Law, (y) in the ordinary course of business consistent with past practice or (z) as expressly contemplated by this Agreement or the terms of any Plan; (ix) change its accounting policies or procedures except to the extent required to conform with GAAP; (x) make, change or revoke any Tax election; change any material method of accounting for Tax purposes; file any amended Tax Return; consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment; fail to pay any Tax that becomes due and payable (including any estimated Tax payments); prepare or file any Tax Return solely relating to the Companies or the Company Subsidiaries in a manner inconsistent with past practice; settle any audit, examination, investigation or other administrative proceeding or judicial proceeding in respect of Taxes or Tax refunds; or enter into any Contract in respect of Taxes with any Tax Authority; (xi) make any loan to, or enter into any other transactions with, any Company Affiliates, managers, officers or key employees other than in the ordinary course of business; (xii) modify, amend, cancel, terminate or waive any material rights under any Material Contract or enter into any Contract that would have been a Material Contract had it been entered into prior to the date of this Agreement, other than (A) purchase orders entered into in the ordinary course of business consistent with past practice, or (B) those Material Contracts set forth on Section 6.1(a)(xii) of the Company Disclosure Schedule; (xiii) commence, settle or offer or propose to settle any Litigation involving or against the Companies or Company Subsidiaries; (xiv) make any capital expenditures or incur any obligations or liabilities in respect thereof that are in excess of $50,000 individually, except for (A) any capital expenditures reflected in the capital budget of the Companies and the Company Subsidiaries made available to Buyer, or (B) any capital expenditures which comprise remaining obligations under the purchase agreements set forth on Section 6.1(a)(xiv) of the Company Disclosure Schedule; (xv) change its fiscal year; or (xvi) authorize, agree, resolve or consent to any of the foregoing. (b) Nothing contained in this Agreement shall give to Buyer, directly or indirectly, rights to control or direct the operations of the Companies prior to the Closing. Prior to the Closing, each Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its operations. (c) Nothing contained in this Agreement shall prohibit either Company from (i) repaying Indebtedness or (ii) declaring, setting aside or making any cash distributions in respect of, any outstanding Company Equity Interests on or prior to the Closing.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Esco Technologies Inc), Equity Purchase Agreement (Sonoco Products Co)
Conduct of Companies. From the date hereof until the Closing, the Companies shall conduct their respective businesses in the ordinary course, consistent with past practice, and not enter into any transaction outside the ordinary course of business. Without limiting the generality of the foregoing, from the date hereof until the Closing, except as contemplated hereby, and except to the extent that Acquirer gives prior written consent:
(a) Except neither PPRX nor PRXA will adopt or propose any change in its Articles of Incorporation or enter into any agreement or incur any obligation, the terms of which would be violated by the consummation of the transactions contemplated by this Agreement;
(ib) to the extent required by any applicable Law or Contract, (ii) except as otherwise expressly contemplated by this Agreement, neither PPRX nor PRXA will:
(iiii) enter into any written contract, agreement, plan or arrangement covering any director, officer or employee of either of the Companies that provides for the making of any payments, the acceleration of vesting of any benefit or right or any other entitlement contingent upon (A) the Acquisition or (B) the termination of employment after the Acquisition;
(ii) enter into or amend any employment, consulting or similar agreement (oral or written) to increase the compensation payable or to become payable by it to, or otherwise materially alter its employment or consulting relationship with, any of its officers, directors or consultants over the amount payable as set forth of the date hereof, or increase the compensation payable to any other employees (other than (A) increases to non-Shareholder employees in Section 6.1(athe ordinary course of business, consistent with past practice, which, do not exceed the greater of $1.50 per hour or 5% of total salary or otherwise have a Material Adverse Effect on the Companies, (B) of pursuant to plans disclosed in the Company Disclosure Schedule, or (ivC) pre-Closing (or year-end, as consented the case may be) bonuses to the Shareholders which are consistent in writing by Buyer (which consent shall not be unreasonably withheld, delayed or conditionedamount with prior years' practices), during or adopt or, except as required by applicable law to maintain a plan's tax-qualified status, amend any employee benefit plan or arrangement (oral or written); provided, however, that nothing herein shall restrict the period Companies from the date hereof until the earlier adjusting management compensation in a manner consistent with prior practices; or
(iii) loan or advance any money to any officer, director, employee, shareholder or consultant of either of the Closing Date and the date this Agreement is terminated pursuant to Article IX, (A) each Company shall use its commercially reasonable efforts to conduct its business and operations Companies other than advances in the ordinary course of business which do not exceed $5,000 at any time outstanding to any one person;
(c) neither PPRX nor PRXA will (i) purchase, acquire, issue, deliver, sell or authorize the issuance, delivery or sale of any stock appreciation rights or of any shares of its capital stock of any class or any securities convertible into or exchangeable for, or rights, warrants or options to acquire, any such shares or convertible or exchangeable securities, (ii) make any changes in its capital structure, or (iii) enter into any agreement or understanding or take any preliminary action with respect to the matters referred to in clause (i) or (ii) of this paragraph (c);
(d) the Companies will keep in full force and effect their existing insurance policies and will not modify or reduce the coverage thereunder;
(e) neither PPRX nor PRXA will (i) pay any dividend or make any other distribution to holders of its capital stock (other than a distribution to cover income taxes on pro rata shares of PPRX income for the year ending on the Closing Date, which amount shall cause be determined assuming such shares shall be subject to a combined Federal and State income tax rate of 50%), (ii) split, combine or reclassify any of its capital stock or propose or authorize the Company Subsidiaries issuance of any other securities in respect of or in lieu of or in substitution for any shares of its capital stock, (iii) repurchase, redeem or otherwise acquire any shares of its capital stock, or (iv) take any preliminary action with respect thereto;
(f) the Companies will not incur any additional indebtedness for borrowed money (including, without limitation, by way of guarantee or the issuance and sale of debt securities or rights to use their commercially acquire debt securities), incur any account payable, or enter into or modify any contract, agreement, commitment or arrangement with respect to the foregoing;
(g) the Companies will not enter into any material transaction that would in the reasonable efforts to conduct their business judgment of Acquirer, delay the occurrence of the Closing beyond July 31, 2003;
(h) other than sales of products and operations services in the ordinary course) course of business and (B) each Company consistent with present practice the Companies will not (and will not permit i) sell, lease or cause otherwise dispose of any Company Subsidiary to):of its assets having a book or market value in excess of $25,000 in the aggregate or that are otherwise material, individually or in the aggregate, to the business, results of operations or financial condition of the Companies, or (ii) enter into, or consent to the entering into of, any agreement granting a preferential right to sell, lease or otherwise dispose of any of such assets;
(i) modify or amend the Companies will not (i) enter into any new line of its Organizational Documents;
business; (ii) issuechange their investment, sell or otherwise permit to become outstanding liability management and other material policies in any limited liability company interests, ordinary shares or other equity interests (as applicable), or split, combine, reclassify, repurchase or redeem any limited liability company interests, ordinary shares or other equity interests (as applicable);
material respect; (iii) incur or commit to any capital expenditures, obligations or liabilities in connection therewith other than capital expenditures, obligations or liabilities that (a) are listed on the Company Disclosure Schedule or (b) individually do not exceed $25,000 and in the aggregate do not exceed $100,000; (iv) acquire or agree to acquire by merging or consolidating with, or acquire or agree to acquire by purchasing an equity interest in or a substantial portion of the assets of, or in any other manner, any business or Person, corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof;
(iv) create any new Subsidiary of a Company or any Company Subsidiary;
; (v) create, incur, assume or otherwise become liable with respect to any item of Indebtedness included in subparts (a) through (h) of the Indebtedness definitionotherwise, except as to the acquisition of materials and supplies for draws its products, services and activities in the ordinary course of business on and consistent with past practices, acquire or agree to acquire any assets for a total consideration in the credit facility disclosed aggregate in Section 4.8(bexcess of $25,000; (vi) make any investment in any Person; or (vii) enter into any license, technology development or technology transfer agreement with any other Person in excess of the Company Disclosure Schedule$25,000;
(vij) divest, sell or otherwise dispose of, or encumber any material asset, other than the Companies will not (i) change their methods of accounting as currently in the ordinary course of business;
(vii) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization;
(viii) (1) enter into or adopt or amend or terminate any Plan (or arrangement that would have been a Plan had it been in existence on the date hereof), (2) enter into a Company Employment Contract that provides for a base salary or severance amount, effect except as applicable, of more than $150,000 or (3) materially increase the salary or target annual incentive compensation opportunity payable to any Company employee at the manager level or above except, in any such case, (x) to the extent required by Law, changes in generally accepted accounting principles; (y) in the ordinary course of business consistent with past practice or (z) as expressly contemplated by this Agreement or the terms of any Plan;
(ixii) change any of its accounting policies or procedures except to the extent required to conform with GAAP;
(x) make, change or revoke any Tax election; change any material method methods of accounting for Tax purposesincome and deductions for income tax purposes from those employed in the preparation of the income tax returns of the Companies for the period ending December 31, 2002; (iii) change their fiscal year; (iv) change any tax election; (v) file any amended Tax Return; consent (vi) enter into any closing agreement relating to any Tax; (vii) settle any Tax claim or assessment or (viii) surrender any right to claim a material Tax refund or to any extension or waiver of the limitation limitations period applicable to any material Tax claim or assessment; fail to pay any Tax that becomes due and payable .
(including any estimated Tax payments); prepare or file any Tax Return solely relating to k) the Companies will not settle or the Company Subsidiaries in a manner inconsistent with past practice; compromise, or agree to settle or compromise any audit, examination, investigation suit or other administrative litigation matter or matter in an arbitration proceeding for any material amount (after taking into account any insurance proceeds to which the Companies are entitled) or judicial proceeding in respect of Taxes or Tax refundsotherwise on terms which would have a Material Adverse Effect on the Companies; or enter into any Contract in respect of Taxes with any Tax Authority;and
(xil) make any loan to, or enter into any other transactions with, any Company Affiliates, managers, officers or key employees other than in the ordinary course of business;
(xii) modify, amend, cancel, terminate or waive any material rights under any Material Contract or enter into any Contract that would have been a Material Contract had it been entered into prior to the date of this Agreement, other than (A) purchase orders entered into in the ordinary course of business consistent with past practice, or (B) those Material Contracts set forth on Section 6.1(a)(xii) of the Company Disclosure Schedule;
(xiii) commence, settle or offer or propose to settle any Litigation involving or against the Companies will not agree or Company Subsidiaries;
(xiv) make any capital expenditures or incur any obligations or liabilities in respect thereof that are in excess of $50,000 individually, except for (A) any capital expenditures reflected in the capital budget of the Companies and the Company Subsidiaries made available commit to Buyer, or (B) any capital expenditures which comprise remaining obligations under the purchase agreements set forth on Section 6.1(a)(xiv) of the Company Disclosure Schedule;
(xv) change its fiscal year; or
(xvi) authorize, agree, resolve or consent to do any of the foregoing.
(b) Nothing contained in this Agreement shall give to Buyer, directly or indirectly, rights to control or direct the operations of the Companies prior to the Closing. Prior to the Closing, each Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its operations.
(c) Nothing contained in this Agreement shall prohibit either Company from (i) repaying Indebtedness or (ii) declaring, setting aside or making any cash distributions in respect of, any outstanding Company Equity Interests on or prior to the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (National Medical Health Card Systems Inc)
Conduct of Companies. (a) Except (iv) to the extent required by any applicable Law or ContractLaw, (iiw) as otherwise expressly contemplated by this Agreement, (iiix) as required or, in any Company’s or Seller’s reasonable, good faith discretion, advisable in connection with any COVID-19 Measures, (y) as set forth in Section 6.1(a) of the Company Disclosure Schedule, or (ivz) as consented to in writing by Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date hereof until the earlier of the Closing Date and the date this Agreement is terminated pursuant to Article IX, (A) each Company shall, and the Seller shall cause each Company to use its commercially reasonable efforts to (x) conduct its business and operations in the ordinary course (and shall cause the Company Subsidiaries to use their commercially reasonable efforts to conduct their of business and (y) preserve intact the Companies’ present business, organization, assets and operations and maintain their relations and goodwill with their material suppliers, customers, employees, and others having a material business relationship with the Companies in the ordinary course) all material respects, and (B) each Company will shall not, and the Seller shall cause each Company not (and will not permit or cause to undertake any Company Subsidiary to):of the following actions:
(i) modify or amend any of its Organizational Documents;
(ii) issue, sell or otherwise permit to become outstanding any limited liability company interests, ordinary shares or other equity interests (as applicable), or split, combine, reclassify, repurchase or redeem any limited liability company interests, ordinary shares or other equity interests (as applicable)Equity Securities;
(iii) acquire by merging or consolidating with, or by purchasing an equity interest in or substantial or, except if the ordinary course of business, a portion of the assets of, any Person, corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof;
(iv) create incur any new Subsidiary of a Company or any Company Subsidiary;
(v) create, incur, assume or otherwise become liable with respect to any item of Indebtedness included in subparts (a) through (h) of the Indebtedness definitionIndebtedness, except for draws Indebtedness with Affiliates in the ordinary course of business on the credit facility disclosed in Section 4.8(b) of the Company Disclosure Scheduleand consistent with past practice;
(viv) divest, sell or otherwise dispose of, or encumber any material asset, other than in the ordinary course of businessbusiness and except for obsolete assets or assets with de minimis or no book value;
(vi) sell, transfer, assign, lease, license (other than non-exclusive licenses in the ordinary course of business consistent with past practice), sublicense, abandon, permit to lapse or expire (other than expiration of registered Intellectual Property in accordance with its maximum statutory term) or otherwise dispose of any material Intellectual Property;
(vii) make any declaration, setting aside or payment of any dividend or distribution by any of the Companies, or the making of any other distribution in respect of the Equity Securities of any of the Companies, or any direct or indirect redemption, purchase or other acquisition by any of the Company of its Equity Securities, other than the distribution of Cash to reduce the Estimated Closing Cash;
(viii) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization;
(viiiix) enter into, amend or terminate any Material Contract, other than in the ordinary course of business, or enter into, amend or terminate any Contract with any Affiliate;
(x) enter into, adopt, amend, or terminate any collective bargaining agreement, works council agreement, trade union agreement, employee representation agreement, or similar agreement or arrangement;
(xi) (1A) enter into or adopt or amend or terminate any Plan (or arrangement that would have been a Plan had it been in existence on the date hereof), ) or (2B) enter into a Company Employment Contract an employment agreement or offer letter that provides for a base salary or severance amount, as applicable, of more than $150,000 50,000 or any severance amount, or (3C) materially increase the salary salary, benefits, severance or target annual incentive compensation opportunity payable to any Company employee at of the manager level Companies or above (D) terminate or give notice of termination of the employment of any employee of the Companies (except for cause as determined in good faith by the Companies) except, in any such case, (x1) to the extent required by Law, (y) in the ordinary course of business consistent with past practice or (z2) as expressly contemplated by this Agreement or the terms of any Plan;
(ixxii) change or modify in any material manner the existing credit, collection and payment policies, procedures and practices with respect to accounts receivable and accounts payable, including (i) acceleration of collections of receivables (including through the use of discounts for early payment, requests for early payment or otherwise) and (ii) failure to pay payables when due or delay in payment of payables compared to past practices (including continuation of past practices with respect to the early payment of payables to obtain the benefit of any payment discounts);
(xiii) change its material accounting policies or procedures except to the extent required to conform with GAAP;
(x) make, change or revoke any Tax election; change any material method of accounting for Tax purposes; file any amended Tax Return; consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment; fail to pay any Tax that becomes due and payable (including any estimated Tax payments); prepare or file any Tax Return solely relating to the Companies or the Company Subsidiaries in a manner inconsistent with past practice; settle any audit, examination, investigation or other administrative proceeding or judicial proceeding in respect of Taxes or Tax refunds; or enter into any Contract in respect of Taxes with any Tax Authority;
(xixiv) make any loan to, or enter into any other transactions with, any Company Affiliates, managers, officers officer or key employees other than in the ordinary course of business;
(xii) modify, amend, cancel, terminate or waive any material rights under any Material Contract or enter into any Contract that would have been a Material Contract had it been entered into prior to the date of this Agreement, other than (A) purchase orders entered into in the ordinary course of business consistent with past practice, or (B) those Material Contracts set forth on Section 6.1(a)(xii) of the Company Disclosure Schedule;
(xiii) commence, settle or offer or propose to settle any Litigation involving or against the Companies or Company Subsidiaries;
(xiv) make any capital expenditures or incur any obligations or liabilities in respect thereof that are in excess of $50,000 individually, except for (A) any capital expenditures reflected in the capital budget of the Companies and the Company Subsidiaries made available to Buyer, or (B) any capital expenditures which comprise remaining obligations under the purchase agreements set forth on Section 6.1(a)(xiv) of the Company Disclosure Schedule;
(xv) change its fiscal year;
(xvi) initiate or settle any material Litigation, claim, complaint or other proceeding; or
(xvixvii) authorize, agree, commit, resolve or consent to any of the foregoing.
(b) Nothing contained in this Agreement shall give to Buyer, directly or indirectly, rights to control or direct the operations of the Companies prior to the Closing. Prior to the Closing, each Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its operations.
(c) Nothing contained in this Agreement shall prohibit either any Company from (i) repaying Indebtedness or (ii) declaring, setting aside or making any cash distributions in respect of, any outstanding Company Equity Interests Securities on or prior to the Closing.
Appears in 1 contract
Samples: Securities Purchase Agreement (Wireless Telecom Group Inc)
Conduct of Companies. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, each of Xxxx, the Sellers and the Company Members covenant and agree that, unless Buyer shall otherwise agree in writing (a) Except which may include email or other electronic transmission), (i) each Company Member shall conduct its business in the Ordinary Course of Business (which, for the purposes of this Section 6.1, shall include any COVID Response required to the extent required be taken by any Company Member to comply with applicable Law Laws) and will continue to collect accounts receivable and pay accounts payable utilizing normal procedures, without discounting or Contractaccelerating payment of such accounts (other than any discount to any account equal to less than 5% of such account balance), (ii) each Company Member will continue to maintain its inventory of raw materials, works in process, finished goods and all other inventory of any kind or nature, wherever located, with respect to the operation of the business of any of the Company Members and its cash management practices, including the acquisition and payment of inventory to fulfill applicable orders, in each case, in the Ordinary Course of Business, and (iii) each Company Member shall not take any action, except in all material respects in the Ordinary Course of Business or consistent with terms of this Agreement. Other than as otherwise expressly contemplated required by the terms of this Agreement, (iii) as set forth in Section 6.1(a) including the Xxxxxxx Buyout Agreement and the Pre-Closing Reorganizations, between the date of this Agreement and the Company Disclosure ScheduleClosing Date, or (iv) as consented to in writing by without the prior consent of Buyer (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed), during the period from the date hereof until the earlier of the Closing Date and the date this Agreement is terminated pursuant to Article IX, (A) each Company Member shall use its commercially reasonable efforts to conduct its business and operations in the ordinary course not:
(and shall cause the Company Subsidiaries to use their commercially reasonable efforts to conduct their business and operations in the ordinary coursea) and (B) each Company will not (and will not permit amend or cause otherwise change any Company Subsidiary to):
(i) modify or amend any of its Organizational Documents;
(iib) issuerepurchase, sell redeem or otherwise permit to become acquire any outstanding any limited liability company interestsshares of capital stock, ordinary shares membership interests or other equity interests of any Company Member;
(as applicable)c) transfer, issue, pledge, encumber, assign, sell or dispose of, or splitgrant options, combinewarrants or other rights to purchase or otherwise acquire, reclassifyany shares of capital stock, repurchase membership interests or redeem any limited liability company interestssecurities convertible, ordinary shares exchangeable or exercisable therefor of the Company Members or other equity interests of any Company Member;
(as applicabled) effect any recapitalization, reclassification, reorganization or like change in the capitalization of any Company Member;
(e) declare, set aside or pay any dividend or distribution in any property in respect of any interest of any Company Member other than a distribution of cash to Seller prior to the Closing Date (to the extent such distribution results in a reduction of Closing Cash);
(iiif) other than as set forth on Schedule 6.1(f), (1) terminate any material Contract (including any Material Contract), materially amend any material Contract (including any Material Contract), (2) enter into, terminate, or materially amend any Contract that if entered into after the date of this Agreement would constitute a Material Contract or (3) cancel, modify or waive any material Indebtedness or claims held in respect of any Company Member or waive any material rights of value, except in the Ordinary Course of Business;
(g) mortgage, pledge or subject to any Lien (other than a Permitted Lien) any portion of the material assets of any Company Member;
(h) sell, transfer, assign, license or otherwise dispose of any Company Member’s assets valued at more than $250,000 in the aggregate except sales of inventory in the Ordinary Course of Business;
(i) establish, adopt, enter into, amend, modify or terminate any Company Benefit Plan, except for the renewal of existing Company Benefit Plans in the Ordinary Course of Business or pursuant to applicable Laws;
(j) except pursuant to the terms of any Company Benefit Plan in effect as of the date hereof or pursuant to applicable Law, (A) increase the compensation or benefits payable or to become payable to any director or officer of any Company Member; (B) grant or increase any rights to change in control, severance or termination payments or benefits to, or enter into any employment or severance agreement with, any director or officer of any Company Member; or (C) engage, hire or promote any employee or independent contractor, or enter into any consultant agreement, in each case providing for annual payments in excess of $150,000 other than to fill open positions as of the date hereof;
(k) plan, announce, implement or effect any reduction in force, lay off, early retirement program, severance program, or terminations of employment other than such actions taken in the Ordinary Course of Business, including any terminations of employment (i) for cause or (ii) of an employee of a Company Member who receives annual base compensation of less than $100,000;
(l) incur or assume any Indebtedness or guarantee any Indebtedness, individually or in the aggregate, in excess of $100,000;
(m) pay, loan or advance any amount to, or sell, transfer or lease any of the Company Member’s assets to, or enter into any agreement or arrangement with, any Affiliate of any Company Member or any director, officer, employee of any Company Member or any of their respective Affiliates, except for loans or advances to employees and reimbursements of out-of-pocket expenses for board meetings and travel in connection with services provided to the Company Members in the Ordinary Course of Business;
(n) (i) make any change in any method of financial or Tax accounting, or financial or Tax accounting practice or policy (including any change in its annual accounting period) other than those required by GAAP or (ii) make, revoke or amend any Tax election, enter into any closing agreement or settlement with a Tax Authority in respect of Taxes, concede any claim or assessment made in writing by a Tax Authority in respect of Taxes, agree or consent to the extension of any statute of limitations with regard to the assessment or collection of Taxes, obtain any Tax ruling or file any amended Tax Return;
(o) 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 Person, corporationor otherwise acquire any assets other than raw materials inventory in the Ordinary Course of Business that are valued, limited liability companyindividually or in the aggregate, partnership, joint venture, association or other business organization or division thereofin excess of $150,000;
(ivp) create make or incur any new Subsidiary capital expenditures that, individually or in the aggregate, are in excess of a Company or $150,000 except capital expenditures contemplated by any Company Subsidiary;
(v) create, incur, assume or otherwise become liable with respect to any item of Indebtedness included in subparts (a) through (hwritten capital expenditure plan set forth on Schedule 6.1(p) of the Indebtedness definition, except for draws in the ordinary course of business on the credit facility disclosed in Section 4.8(b) of the Company Disclosure Schedule;
(viq) divestpurchase, sell license, sublicense, covenant not to xxx or assert under, abandon, disclose, encumber, permit coexistence with, sell, grant, assign or otherwise dispose ofor transfer or enter any Contract for the purchase, license, sublicense, covenant not to xxx or encumber any material assetassert under, other than in the ordinary course of business;
(vii) adopt a plan or agreement of complete or partial liquidationabandonment, dissolutiondisclosure, mergerencumbrance, consolidationpermit coexistence with, restructuringsale, recapitalization assignment or other material reorganization;
(viii) (1) enter into disposition or adopt or amend or terminate any Plan (or arrangement that would have been a Plan had it been in existence on the date hereof), (2) enter into a Company Employment Contract that provides for a base salary or severance amount, as applicabletransfer, of more than $150,000 or (3) materially increase the salary or target annual incentive compensation opportunity payable to any Company employee at the manager level Intellectual Property or above except, in any such case, (x) to the extent required by Law, (y) in the ordinary course of business consistent with past practice or (z) as expressly contemplated by this Agreement or the terms of any Plan;
(ix) change its accounting policies or procedures except to the extent required to conform with GAAP;
(x) make, change or revoke any Tax election; change any material method of accounting for Tax purposes; file any amended Tax Return; consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment; fail to pay any Tax that becomes due and payable (including any estimated Tax payments); prepare or file any Tax Return solely relating to the Companies or the Company Subsidiaries in a manner inconsistent with past practice; settle any audit, examination, investigation or other administrative proceeding or judicial proceeding in respect of Taxes or Tax refunds; or enter into any Contract in respect of Taxes with any Tax Authority;
(xi) make any loan to, or enter into any other transactions with, any Company Affiliates, managers, officers or key employees other than in the ordinary course of business;
(xii) modify, amend, cancel, terminate or waive any material rights under any Material Contract or enter into any Contract that would have been a Material Contract had it been entered into prior to the date of this AgreementTechnology, other than (Ai) purchase orders form agreements with employees and independent contractors each entered into in the ordinary course Ordinary Course of business consistent with past practiceBusiness and each assigning all such individual’s right, title and interest in and to any Company Intellectual Property or Company Technology to any Company Member, (Bii) those Material Contracts set forth on Section 6.1(a)(xii) confidentiality and non-disclosure agreements entered into in the Ordinary Course of Business obligating the parties to such confidentiality and non-disclosure agreements to maintain the confidentiality of any of the Company Disclosure ScheduleMembers’ confidential information, (iii) agreements with customers of any Company Member that are entered into in the Ordinary Course of Business and which grant such customers the limited non-exclusive right to exploit the Company Intellectual Property or Company Technology for the sole purpose of such customer exercising its rights under an applicable agreement between such customer and any Company Member, and (iv) in connection with the testing of products in the Ordinary Course of Business pursuant to and in accordance with Contracts that have been disclosed to Buyer prior to the Agreement Date;
(xiiir) commence(i) incur any additional Indebtedness or grant under the CARES Act and COVID Relief Programs; (ii) defer any payroll Taxes or (iii) avail itself of any of the Tax deferral, settle credits or offer or propose benefits pursuant to settle any Litigation involving or against the Companies or Company SubsidiariesCARES Act and COVID Relief Programs;
(xivs) take any course of action that would make any capital expenditures the representations and warranties regarding the PPP Loans untrue or incur any obligations or liabilities in respect thereof that are in excess of $50,000 individually, except for (A) any capital expenditures reflected in the capital budget of the Companies and the Company Subsidiaries made available to Buyer, or (B) any capital expenditures which comprise remaining obligations under the purchase agreements set forth on Section 6.1(a)(xiv) of the Company Disclosure Schedule;
(xv) change its fiscal yearinaccurate; or
(xvit) authorizeauthorize any of the foregoing, agreeor commit or agree to take actions, resolve whether in writing or consent otherwise, to do any of the foregoing.
(b) Nothing contained in this Agreement shall give to Buyer, directly or indirectly, rights to control or direct the operations of the Companies prior to the Closing. Prior to the Closing, each Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its operations.
(c) Nothing contained in this Agreement shall prohibit either Company from (i) repaying Indebtedness or (ii) declaring, setting aside or making any cash distributions in respect of, any outstanding Company Equity Interests on or prior to the Closing.
Appears in 1 contract