Conduct of Company Business. Except as set forth on Part 5.1 of the Company Disclosure Schedule, during the period from the Original Agreement Date and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing (the “Pre-Closing Period”), Company agrees, except to the extent necessary to effect the transactions contemplated by the Company Stockholder Approval Matters or otherwise to the extent Albireo consents in writing, to carry on its business in substantially the same manner as being conducted as of the Original Agreement Date, 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. In addition, without limiting the foregoing, other than as expressly contemplated by this Agreement (including the actions set forth on Part 5.1 of the Company Disclosure Schedule), without obtaining the written consent of Albireo (which, in the case of Section 5.1(h)(ii), will not be unreasonably withheld, conditioned or delayed), Company will not, and will not permit its Subsidiaries to: (a) amend or otherwise change any of the Organizational Documents, or otherwise alter its corporate structure through merger, liquidation, reorganization or otherwise; (b) issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including any phantom interest) (except for the issuance of shares of Company Common Stock issuable pursuant to Company Options or Company RSUs in accordance with the terms under the Company Stock Option Plan or pursuant to warrants, as the case may be, which options or warrants or rights, as the case may be, are outstanding on the Original Agreement Date); (c) redeem, repurchase or otherwise acquire, directly or indirectly, any shares of Company Common Stock (other than pursuant to a currently outstanding repurchase right in favor of Company with respect to unvested shares, at no more than cost); (d) incur any indebtedness or guarantee any indebtedness for borrowed money or issue or sell any debt securities or guarantee any debt securities or other obligations of others or sell, pledge, dispose of or create an Encumbrance with respect to any assets (except for dispositions of obsolete or worthless assets); (e) accelerate, amend or change the period (or permit any acceleration, amendment or change) of exercisability of options or warrants or authorize cash payments in exchange for any options, except as may be required under any Company Option Plan, Contract or this Agreement or as may be required by applicable Legal Requirements; (f) (i) declare, set aside, make or pay any dividend or 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 any securities of its Subsidiaries, or propose to do any of the foregoing; (g) sell, assign, transfer, license, sublicense or otherwise dispose of any IP Rights other than a Permitted Disposition; (h) (i) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any other material property or assets; (ii) enter into or amend any material terms of any Company Contract, grant any release or relinquishment of any material rights under any Company Contract or assign or sublet any lease; or (iii) enter into or amend any contract, agreement, commitment or arrangement to effect any of the matters prohibited by this Section 5.1(h); (i) forgive any loans to any Person, including its employees, officers, directors or Affiliates; (j) other than as required by Legal Requirements, increase the compensation payable or to become payable to its directors, officers, employees or consultants or grant any severance, change in control, retention or termination pay to, or enter into any employment, severance or similar agreement with, any director, officer, employee or consultant, or establish, adopt, enter into, terminate or amend any collective bargaining or similar agreement or Company Employee Plan (or any plan, program, agreement or arrangement that would be a Company Employee Plan if it were in existence on the Original Agreement Date), or take any action to accelerate the time of payment or vesting of any compensation or benefits or take any action to fund or secure the funding of any compensation or benefits (other than qualified retirement plan benefits); (k) take any action, other than as required by applicable Legal Requirements or GAAP, to change accounting policies or procedures; (l) (i) make or change any material Tax election inconsistent with past practices, (ii) change any material Tax accounting method, or (iii) settle or compromise any material federal, state, local or foreign Tax liability, except, in the case of clauses (i) and (ii), as required by Legal Requirements; (m) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities reflected or reserved against in the Company Financials, or incurred in the ordinary course of business and consistent with past practice; (n) enter into any partnership arrangements, joint development agreements or strategic alliances; (o) initiate any litigation, action, suit, proceeding, claim or arbitration (each, an “Action”) or settle or agree to settle any Action (except for any Action arising out of or related to this Agreement or the transactions contemplated hereby); or (p) take, or agree in writing or otherwise to take, any of the actions described in Sections 5.1(a) through 5.1(o) above, or any action which would make any of the representations or warranties of Company contained in this Agreement untrue or incorrect or would prevent Company from performing, or cause Company not to perform, its covenants hereunder or would result in any of the conditions to the Acquisition set forth herein not being satisfied. The Parties acknowledge and agree that (i) nothing contained in this Agreement shall give Albireo, directly or indirectly, the right to control or direct the operations of any Acquiring Company prior to the Closing, (ii) prior to the Closing, each Acquiring Company shall exercise, consistent with the terms and conditions of this Agreement, complete control over its operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of Albireo will be required with respect to any matter set forth in the Agreement to the extent the requirement of such consent would violate any applicable Legal Requirements.
Appears in 1 contract
Conduct of Company Business. Except From the date hereof to the Closing, except as otherwise expressly set forth on Part 5.1 in this Agreement, the Company shall conduct the business, operations, activities and practices of the Company Disclosure Scheduleonly in the ordinary course, during in accordance with prudent practice and consistent with past practice. Without limiting the period from the Original Agreement Date and continuing until the earlier generality of the termination of this Agreement pursuant to its terms or the Closing (the “Pre-Closing Period”), Company agrees, except to the extent necessary to effect the transactions contemplated by the Company Stockholder Approval Matters or otherwise to the extent Albireo consents in writing, to carry on its business in substantially the same manner as being conducted as of the Original Agreement Date, 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. In addition, without limiting the foregoing, other than as expressly contemplated by this Agreement (including from the actions set forth on Part 5.1 of date hereof to the Company Disclosure Schedule)Closing, without obtaining the prior written consent of Albireo (whichAcquiror or Parent, in the case of Section 5.1(h)(ii), will not be unreasonably withheld, conditioned or delayed), Company will shall not, and will not permit its Subsidiaries to:
(a) amend incur any liabilities or obligations of any nature whatsoever (whether absolute, accrued, contingent or otherwise change and whether due or to become due), except for liabilities or obligations for (i) rent under the Leases (provided, that the Company shall not enter into any new, modified or extended leases for real property without the consent of Acquiror), (ii) loans to the Company from one or more of its stockholders as deemed necessary to fund ongoing operations of the Organizational DocumentsCompany in amounts previously disclosed to Parent (which, together with any such loans previously made and disclosed to Parent, shall be termed "Bridge Loans"), and (iii) other items incurred in the ordinary course of business and consistent with past practice, none of which other items shall exceed $10,000 (considering liabilities or otherwise alter its corporate structure through mergerobligations arising from one transaction or a series of similar transactions, liquidationand all periodic installments or payments under any lease (other than the Leases) or other agreement providing for periodic installments or payments, reorganization as a single obligation or otherwiseliability);
(b) issue, sell, pledge, dispose increase (other than an increase resulting from the calculation of reserves in the ordinary course of business and in a manner consistent with past practice) or encumberchange any assumptions underlying, or authorize the issuance, sale, pledge, disposition or encumbrance ofmethods of calculating, any shares of capital stock of any classbad debt, or any options, warrants, convertible securities contingency or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including any phantom interest) (except for the issuance of shares of Company Common Stock issuable pursuant to Company Options or Company RSUs in accordance with the terms under the Company Stock Option Plan or pursuant to warrants, as the case may be, which options or warrants or rights, as the case may be, are outstanding on the Original Agreement Date)reserves;
(c) redeem, repurchase or otherwise acquire, directly or indirectly, any shares of Company Common Stock (other than pursuant to a currently outstanding repurchase right in favor of Company with respect to unvested shares, at no more than cost);
(d) incur any indebtedness or guarantee any indebtedness for borrowed money or issue or sell any debt securities or guarantee any debt securities or other obligations of others or sell, pledge, dispose of or create an Encumbrance with respect to any assets (except for dispositions of obsolete or worthless assets);
(e) accelerate, amend or change the period (or permit any acceleration, amendment or change) of exercisability of options or warrants or authorize cash payments in exchange for any options, except as may be required under any Company Option Plan, Contract or this Agreement or as may be required by applicable Legal Requirements;
(f) (i) declare, set aside, make or pay any dividend or 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 any securities of its Subsidiaries, or propose to do any of the foregoing;
(g) sell, assign, transfer, license, sublicense or otherwise dispose of any IP Rights other than a Permitted Disposition;
(h) (i) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any other material property or assets; (ii) enter into or amend any material terms of any Company Contract, grant any release or relinquishment of any material rights under any Company Contract or assign or sublet any lease; or (iii) enter into or amend any contract, agreement, commitment or arrangement to effect any of the matters prohibited by this Section 5.1(h);
(i) forgive any loans to any Person, including its employees, officers, directors or Affiliates;
(j) other than as required by Legal Requirements, increase the compensation payable or to become payable to its directors, officers, employees or consultants or grant any severance, change in control, retention or termination pay to, or enter into any employment, severance or similar agreement with, any director, officer, employee or consultant, or establish, adopt, enter into, terminate or amend any collective bargaining or similar agreement or Company Employee Plan (or any plan, program, agreement or arrangement that would be a Company Employee Plan if it were in existence on the Original Agreement Date), or take any action to accelerate the time of payment or vesting of any compensation or benefits or take any action to fund or secure the funding of any compensation or benefits (other than qualified retirement plan benefits);
(k) take any action, other than as required by applicable Legal Requirements or GAAP, to change accounting policies or procedures;
(l) (i) make or change any material Tax election inconsistent with past practices, (ii) change any material Tax accounting method, or (iii) settle or compromise any material federal, state, local or foreign Tax liability, except, in the case of clauses (i) and (ii), as required by Legal Requirements;
(m) pay, discharge or satisfy any claimsclaim, liabilities encumbrance, liability or obligations obligation (whether absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise and whether due or to become due), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities and obligations which are reflected or reserved against in the Company Financials, 2000 Balance Sheet or which have been incurred since the date thereof in the ordinary course of business and consistent with past practice, or prepay any liability or obligation having a fixed maturity of more than 90 days from the date such liability or obligation was issued or incurred;
(d) permit, allow or suffer any of the Company Assets to be subjected to any new or additional mortgage, pledge, lien, encumbrance, restriction or charge of any kind (except for liens arising as a result of Taxes not yet owing) except for capital equipment leases not to exceed $15,000 in the aggregate;
(e) determine as collectible any notes or accounts receivable or any portion thereof which was previously considered uncollectible or write off as uncollectible any notes or accounts receivable or any portion thereof other than in the ordinary course of business, but in no event to exceed $15,000 in the aggregate,
(f) cancel any amount of indebtedness in excess of $10,000 or waive any claims or rights of value in excess of $10,000;
(g) sell, transfer or otherwise dispose of any of the Company Assets with an aggregate value of more than $10,000;
(h) dispose of or permit to lapse any right to use any patent, trademark, assumed name, service xxxx, trade name, copyright, license or application therefor or dispose of or disclose to any Person other than representatives of Acquiror or Parent any trade secret, formula, process or know-how not theretofore a matter of public knowledge (other than disclosures in the ordinary course of business and consistent with past practice that would not materially diminish the value of such trade secrets, formulae, processes or know-how to the Company);
(i) grant any increase in the compensation payable to any employee of the Company (including, without limitation, any increase or change pursuant to any bonus, pension, profit-sharing, retirement or other plan or commitment);
(j) pay, loan or advance any amount (except for advances in the ordinary course of business and consistent with past practice that do not in the aggregate exceed $5,000 and are not made as advances for personal loans) to, or sell, transfer or lease any of the Company Assets to, or enter into any agreement or arrangements with, any of the officers, directors, stockholders or employees of any Company or any of their respective affiliates;
(k) enter into any collective bargaining or labor agreement;
(l) make any single capital expenditure or commitment in excess of $5,000 for additions to property, plant, equipment or intangible capital assets or for any other purpose or make aggregate capital expenditures or commitments in excess of $15,000 for additions to property, plant, equipment or for any other purpose;
(m) make any change in any method of accounting or accounting practice or policy;
(n) enter into any partnership arrangements, joint development agreements agreement or strategic alliancescontract or commitment of the type required to be disclosed pursuant to Section 3.10 hereof or outside the ordinary course of business;
(o) initiate terminate or amend in any litigationmaterial respect any material contract, actionlease, suitlicense, proceedingor other agreement to which the Company is a party;
(p) permit any option to renew any Lease or any option to purchase any property to expire or exercise any such option;
(q) issue any additional shares of capital stock of the Company or options, claim or arbitration warrants, rights (eachincluding, an “Action”without limitation, stock appreciation rights and phantom stock rights) or settle other securities exercisable for, convertible into or agree exchangeable for shares of capital stock of the Company, or pay any dividend (or make any other distribution) to settle the holders of capital stock of the Company;
(r) omit to do any Action act, or permit any act or omission to act, which may cause a breach of any contract, commitment or obligation of the Company, or any breach of any representation, warranty, covenant or agreement made by the Company herein;
(except s) take any other action not in the ordinary course of business and consistent with past practice and prudent business practice or provided for any Action arising out of or related to in this Agreement or the transactions contemplated hereby)Agreement; or
(pt) takeagree, or agree whether in writing or otherwise otherwise, to take, do any of the actions described in Sections 5.1(a) through 5.1(o) above, or any action which would make any of the representations or warranties of Company contained in this Agreement untrue or incorrect or would prevent Company from performing, or cause Company not to perform, its covenants hereunder or would result in any of the conditions to the Acquisition set forth herein not being satisfied. The Parties acknowledge and agree that (i) nothing contained in this Agreement shall give Albireo, directly or indirectly, the right to control or direct the operations of any Acquiring Company prior to the Closing, (ii) prior to the Closing, each Acquiring Company shall exercise, consistent with the terms and conditions of this Agreement, complete control over its operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of Albireo will be required with respect to any matter set forth in the Agreement to the extent the requirement of such consent would violate any applicable Legal Requirementsforegoing.
Appears in 1 contract
Conduct of Company Business. Except From the date hereof to the Closing, except as otherwise expressly set forth on Part 5.1 in this Agreement, the Company shall conduct the business, operations, activities and practices of the Company Disclosure Scheduleonly in the ordinary course, during in accordance with prudent practice and consistent with past practice. Without limiting the period from the Original Agreement Date and continuing until the earlier generality of the termination of this Agreement pursuant to its terms or the Closing (the “Pre-Closing Period”), Company agrees, except to the extent necessary to effect the transactions contemplated by the Company Stockholder Approval Matters or otherwise to the extent Albireo consents in writing, to carry on its business in substantially the same manner as being conducted as of the Original Agreement Date, 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. In addition, without limiting the foregoing, other than as expressly contemplated by this Agreement (including from the actions set forth on Part 5.1 of date hereof to the Company Disclosure Schedule)Closing, without obtaining the prior written consent of Albireo MSSC Texas or Marketing Specialists, Tower shall not (which, in and shall cause the case of Section 5.1(h)(ii), will not be unreasonably withheld, conditioned or delayed), Company will Subsidiaries to not, and will not permit its Subsidiaries to:):
(a) amend incur any liabilities or obligations of any nature whatsoever (whether absolute, accrued, contingent or otherwise change and whether due or to become due), except for liabilities or obligations for (i) rent under the Leases and (ii) other items incurred in the ordinary course of business and consistent with past practice, none of which other items shall exceed $10,000 (considering liabilities or obligations arising from one transaction or a series of similar transactions, and all periodic installments or payments under any of lease (other than the Organizational DocumentsLeases) or other agreement providing for periodic installments or payments, as a single obligation or otherwise alter its corporate structure through merger, liquidation, reorganization or otherwiseliability);
(b) issue, sell, pledge, dispose increase (other than an increase resulting from the calculation of reserves in the ordinary course of business and in a manner consistent with past practice) or encumberchange any assumptions underlying, or authorize the issuance, sale, pledge, disposition or encumbrance ofmethods of calculating, any shares of capital stock of any classbad debt, or any options, warrants, convertible securities contingency or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including any phantom interest) (except for the issuance of shares of Company Common Stock issuable pursuant to Company Options or Company RSUs in accordance with the terms under the Company Stock Option Plan or pursuant to warrants, as the case may be, which options or warrants or rights, as the case may be, are outstanding on the Original Agreement Date)reserves;
(c) redeem, repurchase or otherwise acquire, directly or indirectly, any shares of Company Common Stock (other than pursuant to a currently outstanding repurchase right in favor of Company with respect to unvested shares, at no more than cost);
(d) incur any indebtedness or guarantee any indebtedness for borrowed money or issue or sell any debt securities or guarantee any debt securities or other obligations of others or sell, pledge, dispose of or create an Encumbrance with respect to any assets (except for dispositions of obsolete or worthless assets);
(e) accelerate, amend or change the period (or permit any acceleration, amendment or change) of exercisability of options or warrants or authorize cash payments in exchange for any options, except as may be required under any Company Option Plan, Contract or this Agreement or as may be required by applicable Legal Requirements;
(f) (i) declare, set aside, make or pay any dividend or 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 any securities of its Subsidiaries, or propose to do any of the foregoing;
(g) sell, assign, transfer, license, sublicense or otherwise dispose of any IP Rights other than a Permitted Disposition;
(h) (i) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any other material property or assets; (ii) enter into or amend any material terms of any Company Contract, grant any release or relinquishment of any material rights under any Company Contract or assign or sublet any lease; or (iii) enter into or amend any contract, agreement, commitment or arrangement to effect any of the matters prohibited by this Section 5.1(h);
(i) forgive any loans to any Person, including its employees, officers, directors or Affiliates;
(j) other than as required by Legal Requirements, increase the compensation payable or to become payable to its directors, officers, employees or consultants or grant any severance, change in control, retention or termination pay to, or enter into any employment, severance or similar agreement with, any director, officer, employee or consultant, or establish, adopt, enter into, terminate or amend any collective bargaining or similar agreement or Company Employee Plan (or any plan, program, agreement or arrangement that would be a Company Employee Plan if it were in existence on the Original Agreement Date), or take any action to accelerate the time of payment or vesting of any compensation or benefits or take any action to fund or secure the funding of any compensation or benefits (other than qualified retirement plan benefits);
(k) take any action, other than as required by applicable Legal Requirements or GAAP, to change accounting policies or procedures;
(l) (i) make or change any material Tax election inconsistent with past practices, (ii) change any material Tax accounting method, or (iii) settle or compromise any material federal, state, local or foreign Tax liability, except, in the case of clauses (i) and (ii), as required by Legal Requirements;
(m) pay, discharge or satisfy any claimsclaim, liabilities encumbrance, liability or obligations obligation (whether absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise and whether due or to become due), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities and obligations which are reflected or reserved against in the Company Financials, 1996 Balance Sheet or which have been incurred since the date thereof in the ordinary course of business and consistent with past practice, or prepay any liability or obligation having a fixed maturity of more than 90 days from the date such liability or obligation was issued or incurred;
(nd) enter into permit, allow or suffer any partnership arrangementsof the Company Assets to be subjected to any new or additional mortgage, joint development agreements pledge, lien, encumbrance, restriction or strategic alliancescharge of any kind (except for liens arising as a result of Taxes not yet owing) except for capital equipment leases not to exceed $15,000 in the aggregate;
(oe) initiate determine as collectible any litigationnotes or accounts receivable or any portion thereof which was previously considered uncollectible or write off as uncollectible any notes or accounts receivable or any portion thereof other than in the ordinary course of business, action, suit, proceeding, claim or arbitration (each, an “Action”) or settle or agree but in no event to settle any Action (except for any Action arising out of or related to this Agreement or exceed $15,000 in the transactions contemplated hereby); oraggregate;
(pf) take, cancel any amount of indebtedness in excess of $5,000 or agree waive any claims or rights of value in writing or otherwise to take, any excess of the actions described in Sections 5.1(a) through 5.1(o) above, or any action which would make any of the representations or warranties of Company contained in this Agreement untrue or incorrect or would prevent Company from performing, or cause Company not to perform, its covenants hereunder or would result in any of the conditions to the Acquisition set forth herein not being satisfied. The Parties acknowledge and agree that (i) nothing contained in this Agreement shall give Albireo, directly or indirectly, the right to control or direct the operations of any Acquiring Company prior to the Closing, (ii) prior to the Closing, each Acquiring Company shall exercise, consistent with the terms and conditions of this Agreement, complete control over its operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of Albireo will be required with respect to any matter set forth in the Agreement to the extent the requirement of such consent would violate any applicable Legal Requirements.$5,000;
Appears in 1 contract
Samples: Merger Agreement (Richmont Marketing Specialists Inc)
Conduct of Company Business. Except From the date hereof to the Closing, except as otherwise expressly set forth on Part 5.1 in this Agreement, the Company shall conduct the business, operations, activities and practices of the Company Disclosure Scheduleonly in the ordinary course, during in accordance with prudent practice and consistent with past practice. Without limiting the period from the Original Agreement Date and continuing until the earlier generality of the termination of this Agreement pursuant to its terms or the Closing (the “Pre-Closing Period”), Company agrees, except to the extent necessary to effect the transactions contemplated by the Company Stockholder Approval Matters or otherwise to the extent Albireo consents in writing, to carry on its business in substantially the same manner as being conducted as of the Original Agreement Date, 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. In addition, without limiting the foregoing, other than as expressly contemplated by this Agreement (including from the actions set forth on Part 5.1 of date hereof to the Company Disclosure Schedule)Closing, without obtaining the prior written consent of Albireo (whichAcquiror or Parent, in the case of Section 5.1(h)(ii), will not be unreasonably withheld, conditioned or delayed), Company will shall not, and will not permit its Subsidiaries to:
(a) amend incur any liabilities or obligations of any nature whatsoever (whether absolute, accrued, contingent or otherwise change and whether due or to become due), except for liabilities or obligations for (i) rent under the Leases (provided, that the Company shall not enter into any new, modified or extended leases for real property without the consent of Acquiror), (ii) loans to the Company from one or more of its stockholders as deemed necessary to fund ongoing operations of the Organizational DocumentsCompany in amounts previously disclosed to Parent (which, together with any such loans previously made and disclosed to Parent, shall be termed "Bridge Loans"), and (iii) other items incurred in the ordinary course of business and consistent with past practice, none of which other items shall exceed $10,000 (considering liabilities or otherwise alter its corporate structure through mergerobligations arising from one transaction or a series of similar transactions, liquidationand all periodic installments or payments under any lease (other than the Leases) or other agreement providing for periodic installments or payments, reorganization as a single obligation or otherwiseliability);
(b) issue, sell, pledge, dispose increase (other than an increase resulting from the calculation of reserves in the ordinary course of business and in a manner consistent with past practice) or encumberchange any assumptions underlying, or authorize the issuance, sale, pledge, disposition or encumbrance ofmethods of calculating, any shares of capital stock of any classbad debt, or any options, warrants, convertible securities contingency or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including any phantom interest) (except for the issuance of shares of Company Common Stock issuable pursuant to Company Options or Company RSUs in accordance with the terms under the Company Stock Option Plan or pursuant to warrants, as the case may be, which options or warrants or rights, as the case may be, are outstanding on the Original Agreement Date)reserves;
(c) redeem, repurchase or otherwise acquire, directly or indirectly, any shares of Company Common Stock (other than pursuant to a currently outstanding repurchase right in favor of Company with respect to unvested shares, at no more than cost);
(d) incur any indebtedness or guarantee any indebtedness for borrowed money or issue or sell any debt securities or guarantee any debt securities or other obligations of others or sell, pledge, dispose of or create an Encumbrance with respect to any assets (except for dispositions of obsolete or worthless assets);
(e) accelerate, amend or change the period (or permit any acceleration, amendment or change) of exercisability of options or warrants or authorize cash payments in exchange for any options, except as may be required under any Company Option Plan, Contract or this Agreement or as may be required by applicable Legal Requirements;
(f) (i) declare, set aside, make or pay any dividend or 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 any securities of its Subsidiaries, or propose to do any of the foregoing;
(g) sell, assign, transfer, license, sublicense or otherwise dispose of any IP Rights other than a Permitted Disposition;
(h) (i) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any other material property or assets; (ii) enter into or amend any material terms of any Company Contract, grant any release or relinquishment of any material rights under any Company Contract or assign or sublet any lease; or (iii) enter into or amend any contract, agreement, commitment or arrangement to effect any of the matters prohibited by this Section 5.1(h);
(i) forgive any loans to any Person, including its employees, officers, directors or Affiliates;
(j) other than as required by Legal Requirements, increase the compensation payable or to become payable to its directors, officers, employees or consultants or grant any severance, change in control, retention or termination pay to, or enter into any employment, severance or similar agreement with, any director, officer, employee or consultant, or establish, adopt, enter into, terminate or amend any collective bargaining or similar agreement or Company Employee Plan (or any plan, program, agreement or arrangement that would be a Company Employee Plan if it were in existence on the Original Agreement Date), or take any action to accelerate the time of payment or vesting of any compensation or benefits or take any action to fund or secure the funding of any compensation or benefits (other than qualified retirement plan benefits);
(k) take any action, other than as required by applicable Legal Requirements or GAAP, to change accounting policies or procedures;
(l) (i) make or change any material Tax election inconsistent with past practices, (ii) change any material Tax accounting method, or (iii) settle or compromise any material federal, state, local or foreign Tax liability, except, in the case of clauses (i) and (ii), as required by Legal Requirements;
(m) pay, discharge or satisfy any claimsclaim, liabilities encumbrance, liability or obligations obligation (whether absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise and whether due or to become due), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities and obligations which are reflected or reserved against in the Company Financials, 2000 Balance Sheet or which have been incurred since the date thereof in the ordinary course of business and consistent with past practice, or prepay any liability or obligation having a fixed maturity of more than 90 days from the date such liability or obligation was issued or incurred;
(d) permit, allow or suffer any of the Company Assets to be subjected to any new or additional mortgage, pledge, lien, encumbrance, restriction or charge of any kind (except for liens arising as a result of Taxes not yet owing) except for capital equipment leases not to exceed $15,000 in the aggregate;
(e) determine as collectible any notes or accounts receivable or any portion thereof which was previously considered uncollectible or write off as uncollectible any notes or accounts receivable or any portion thereof other than in the ordinary course of business, but in no event to exceed $15,000 in the aggregate,
(f) cancel any amount of indebtedness in excess of $10,000 or waive any claims or rights of value in excess of $10,000;
(g) sell, transfer or otherwise dispose of any of the Company Assets with an aggregate value of more than $10,000;
(h) dispose of or permit to lapse any right to use any patent, trademark, assumed name, service mark, trade name, copyright, license or application therefor or xxspose of or disclose to any Person other than representatives of Acquiror or Parent any trade secret, formula, process or know-how not theretofore a matter of public knowledge (other than disclosures in the ordinary course of business and consistent with past practice that would not materially diminish the value of such trade secrets, formulae, processes or know-how to the Company);
(i) grant any increase in the compensation payable to any employee of the Company (including, without limitation, any increase or change pursuant to any bonus, pension, profit-sharing, retirement or other plan or commitment);
(j) pay, loan or advance any amount (except for advances in the ordinary course of business and consistent with past practice that do not in the aggregate exceed $5,000 and are not made as advances for personal loans) to, or sell, transfer or lease any of the Company Assets to, or enter into any agreement or arrangements with, any of the officers, directors, stockholders or employees of any Company or any of their respective affiliates;
(k) enter into any collective bargaining or labor agreement;
(l) make any single capital expenditure or commitment in excess of $5,000 for additions to property, plant, equipment or intangible capital assets or for any other purpose or make aggregate capital expenditures or commitments in excess of $15,000 for additions to property, plant, equipment or for any other purpose;
(m) make any change in any method of accounting or accounting practice or policy;
(n) enter into any partnership arrangements, joint development agreements agreement or strategic alliancescontract or commitment of the type required to be disclosed pursuant to Section 3.10 hereof or outside the ordinary course of business;
(o) initiate terminate or amend in any litigationmaterial respect any material contract, actionlease, suitlicense, proceedingor other agreement to which the Company is a party;
(p) permit any option to renew any Lease or any option to purchase any property to expire or exercise any such option;
(q) issue any additional shares of capital stock of the Company or options, claim or arbitration warrants, rights (eachincluding, an “Action”without limitation, stock appreciation rights and phantom stock rights) or settle other securities exercisable for, convertible into or agree exchangeable for shares of capital stock of the Company, or pay any dividend (or make any other distribution) to settle the holders of capital stock of the Company;
(r) omit to do any Action act, or permit any act or omission to act, which may cause a breach of any contract, commitment or obligation of the Company, or any breach of any representation, warranty, covenant or agreement made by the Company herein;
(except s) take any other action not in the ordinary course of business and consistent with past practice and prudent business practice or provided for any Action arising out of or related to in this Agreement or the transactions contemplated hereby)Agreement; or
(pt) takeagree, or agree whether in writing or otherwise otherwise, to take, do any of the actions described in Sections 5.1(a) through 5.1(o) above, or any action which would make any of the representations or warranties of Company contained in this Agreement untrue or incorrect or would prevent Company from performing, or cause Company not to perform, its covenants hereunder or would result in any of the conditions to the Acquisition set forth herein not being satisfied. The Parties acknowledge and agree that (i) nothing contained in this Agreement shall give Albireo, directly or indirectly, the right to control or direct the operations of any Acquiring Company prior to the Closing, (ii) prior to the Closing, each Acquiring Company shall exercise, consistent with the terms and conditions of this Agreement, complete control over its operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of Albireo will be required with respect to any matter set forth in the Agreement to the extent the requirement of such consent would violate any applicable Legal Requirementsforegoing.
Appears in 1 contract
Conduct of Company Business. Except (i) for the consummation of the transactions contemplated by this Agreement, (ii) as set forth on Part 5.1 of the Company Disclosure ScheduleSchedule 7.1 or (iii) as otherwise expressly contemplated by this Agreement, during the period from the Original Agreement Date date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing Closing, Seller will, and Owner shall cause Seller to, (the “Pre-Closing Period”), Company agrees, except to the extent necessary to effect the transactions contemplated by x) conduct the Company Stockholder Approval Matters or otherwise Business only in the Ordinary Course of Business and (y) use commercially reasonable efforts to maintain and preserve intact the extent Albireo consents Company Business, including retaining the services of Producers, officers and key employees of Seller and preserving its relationships with, and the goodwill of, vendors, carriers, clients and other Persons with whom it has a material business relationship in writing, to carry on its business in substantially the same a manner as being conducted as of the Original Agreement Date, 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 dueconsistent with past practice. In addition, without Without limiting the foregoing, other than the Seller Parties agree that, during the period from the date of this Agreement to the Closing, except as otherwise expressly contemplated by this Agreement (Agreement, including the actions as set forth on Part 5.1 of in Schedule 7.1 hereto, as consented to by Purchaser in writing or as may be required under applicable law, the Company Disclosure Schedule), without obtaining the written consent of Albireo (which, in the case of Section 5.1(h)(ii), will not be unreasonably withheld, conditioned or delayed), Company will Seller Parties shall not, and will not permit its Subsidiaries to:
(a) amend sell, transfer, lease, license, convey or otherwise change dispose of, or mortgage or pledge, or impose or suffer to be imposed any Security Interest on, any of the Organizational DocumentsAcquired Assets, including via any dividend, share repurchase, redemption or otherwise alter its corporate structure through merger, liquidation, reorganization or otherwisesimilar transaction;
(bi) issueterminate any Acquired Contract, sellmaterially amend or modify any Acquired Contract, pledgecancel, dispose terminate (prior to its expiration), waive, release or assign any material rights or claims under any Acquired Contract or cancel, modify or waive any claims held in respect of the Company Business or encumberAcquired Assets, or authorize the issuance, sale, pledge, disposition or encumbrance of, waive any shares of capital stock of any class, or any options, warrants, convertible securities or other material rights of any kind value with respect to acquire any shares of capital stock, or any other ownership interest (including any phantom interest) (except for the issuance of shares of Company Common Stock issuable pursuant to Company Options or Company RSUs in accordance with the terms under the Company Stock Option Plan Business or pursuant the Acquired Assets or (ii) enter into any Contract that would have been a Material Agreement had it been entered into prior to warrants, as the case may be, which options or warrants or rights, as the case may be, are outstanding on the Original Agreement Date)date of this Agreement;
(c) redeementer into any Contract which provides for the sharing of commissions, repurchase including, without limitation, with any third-party or otherwise acquireany Affiliate, directly or indirectly, which requires Seller or Owner (in connection with Company Business) to guarantee any shares of Company Common Stock (other than pursuant to amount or make a currently outstanding repurchase right in favor of Company with respect to unvested shares, at no more than cost)minimum payment;
(d) incur acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any indebtedness other manner, any business or guarantee any indebtedness for borrowed money Person, or issue or sell any debt securities or guarantee any debt securities or other obligations of others or sell, pledge, dispose of or create an Encumbrance with respect to otherwise acquire any assets (except for dispositions that are valued, individually or in the aggregate, outside of obsolete or worthless assets)the Ordinary Course the Business consistent with past practice in excess of $50,000;
(e) accelerate, amend or change the period (or permit enter into any acceleration, amendment or change) of exercisability of options or warrants or authorize cash payments in exchange for any options, except as may be required under any Company Option Plan, Contract or this Agreement arrangement which (i) requires any Seller Party, or as may be required by applicable Legal Requirements;any employee of a Seller Party, to maintain the confidentiality of Confidential Information, or to refrain from (1) competing with a Person other than Seller, (2) offering any products, product lines, lines of business or services, (3) operating in any jurisdiction, (4) operating in any manner, (5) soliciting or accepting business from the clients, customers, vendors or suppliers or other business relationships of a Person other than Seller, or (6) soliciting or hiring employees of a Person other than Seller, or (ii) contains (1) a right of first refusal or right of first offer, right of first negotiation, most favored nation or similar right in favor of a Person other than Seller or (2) an exclusivity requirement or similar provision binding on Seller or the Company Business,
(f) (i) declare, set aside, make materially delay or pay accelerate payment of any dividend account payable or other distribution (whether liability directly related to the Acquired Assets beyond or in cash, stock or property or any combination thereof) in respect of any advance of its capital stock, except that a wholly owned Subsidiary may declare and pay a dividend to its parent, (ii) split, combine due date or reclassify any the date when such liability would have been paid in the Ordinary Course 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 any securities of its Subsidiaries, or propose to do any of the foregoingBusiness;
(g) sell(i) initiate or commence any material claim, assigncharge, transfercomplaint, licensedemand, sublicense hearing, action, suit, arbitration, inquiry, proceeding or otherwise dispose of investigation or (ii) settle any IP Rights material claim, charge, complaint, demand, hearing, action, suit, arbitration, inquiry, proceeding or investigation other than a Permitted Dispositionthe Excluded Cases and except for monetary settlements paid before the Effective Time which do not impose any continuing obligations on the Company Business or Acquired Assets after the Closing other than confidentiality obligations or other obligations that will not have an effect on the ongoing operations of the Company Business;
(h) with respect to the Acquired Assets and the Company Business: (i) acquire (by mergerfile any amended Tax Returns, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any other material property or assets; (ii) sign or enter into any closing agreement or amend any material terms settlement agreement with respect to any, or compromise any, claim or assessment of any Company ContractTax liability, grant any release or relinquishment of any material rights under any Company Contract or assign or sublet any lease; or (iii) enter into surrender any right to claim a refund, offset or amend other reduction in liability, (iv) consent to any contract, agreement, commitment extension or arrangement to effect any waiver of the matters prohibited by this Section 5.1(h)limitations period applicable to any claim or assessment, or (v) make, amend or revoke any material Tax election;
(i) forgive make any loans change to any Personits methods of accounting policies or practices, including its employees, officers, directors except as required by changes in GAAP or Affiliatesother applicable laws;
(j) not adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation or recapitalization of Seller;
(k) other than as required by Legal Requirementsthe terms of any Employee Plan or applicable laws, (i) grant or increase any severance or termination entitlement to any employee of the compensation payable Company Business (or to become payable to its directors, officers, employees or consultants or grant amend any severance, change in control, retention such existing severance or termination pay toarrangement), or (ii) enter into any employment, severance change of control, deferred compensation or other similar agreement with, with any director, officer, employee or consultant, or establish, adopt, enter into, terminate of the Company Business (or amend any collective bargaining such existing agreement), (iii) make any changes to the base salary, annual compensation, bonus and/or other benefits payable to any employee of the Company Business or similar agreement (iv) adopt, amend or Company terminate any Employee Plan (or any plan, agreement, program, agreement policy, trust, fund or other arrangement that would be a Company an Employee Plan if it were in existence on as of the Original date of this Agreement Date(except in the case of this clause (iv), or take any action for amendments determined by the Seller Parties in good faith to accelerate be required to comply with applicable laws and in the time Ordinary Course of payment or vesting of any compensation or benefits or take any action to fund or secure the funding of any compensation or benefits (other than qualified retirement plan benefitsBusiness);
(k) take any action, other than as required by applicable Legal Requirements or GAAP, to change accounting policies or procedures;
(l) (i) make hire any employee with annual compensation or change any material Tax election inconsistent with past practices, base salary in excess of $100,000 or (ii) change terminate the employment of any material Tax accounting methodProducer or other employees of the Company Business with significant client-facing activities, or (iii) settle or compromise any material federal, state, local or foreign Tax liability, except, except in circumstances that require immediate termination for cause consistent with the case of clauses (i) applicable Seller’s personnel policies and (ii), as required by Legal Requirementscustomary practice;
(m) pay, discharge loan or satisfy advance any claimsamount to, liabilities or obligations (absolutesell, accruedtransfer or lease any of the Company’s assets to, asserted or unassertedenter into any Contract or arrangement with, contingent any current or otherwise)former officer, other than the paymentdirector, discharge equityholder or satisfaction Affiliate of a Seller Party, or any party related to any such Person, or any entity in which any such Person or individual owns any beneficial interest, except for loans or advances to employees in connection with expense reimbursement in the ordinary course Ordinary Course of business and consistent with past practice of liabilities reflected or reserved against in the Company Financials, or incurred in the ordinary course of business and consistent with past practiceBusiness;
(n) enter into into, amend or terminate any partnership arrangements, joint development agreements or strategic alliancescollective bargaining agreement;
(o) initiate cancel, modify, terminate or transfer, or agree to the cancellation, modification, termination or transfer of, any litigationInsurance Policy covering the Company Business or the Acquired Assets without obtaining comparable substitute insurance coverage, and with respect to each such Insurance Policy that is a “claims made” policy, securing the extension of the reporting terms for each such Insurance Policy to a date at least three (3) years subsequent to the Closing Date or taking whatever steps the Purchaser may reasonably request in connection with the purchase of a “tail” policy providing for continued coverage of the Company Business and the Acquired Assets for a period extending at least three years following the Closing Date, covering all liabilities accruing with respect to the Company Business and the Acquired Assets prior to the Closing Date;
(p) fail to provide notice under any Insurance Policy of any claim, charge, complaint, demand, hearing, action, suit, arbitration, inquiry, proceeding, claim investigation or arbitration (eachother matter with respect to Seller, an “Action”) the Company Business or settle or agree any of the Acquired Assets of which a Seller Party has Knowledge prior to settle Closing and for which insurance coverage is likely available under any Action (except for any Action arising out of or related to this Agreement or the transactions contemplated hereby)Insurance Policy; or
(pq) takeauthorize any of the foregoing, or commit or agree to take actions, whether in writing or otherwise otherwise, to take, do any of the actions described in Sections 5.1(a) through 5.1(o) above, or any action which would make any of the representations or warranties of Company contained in this Agreement untrue or incorrect or would prevent Company from performing, or cause Company not to perform, its covenants hereunder or would result in any of the conditions to the Acquisition set forth herein not being satisfied. The Parties acknowledge and agree that (i) nothing contained in this Agreement shall give Albireo, directly or indirectly, the right to control or direct the operations of any Acquiring Company prior to the Closing, (ii) prior to the Closing, each Acquiring Company shall exercise, consistent with the terms and conditions of this Agreement, complete control over its operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of Albireo will be required with respect to any matter set forth in the Agreement to the extent the requirement of such consent would violate any applicable Legal Requirementsforegoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Northwest Bancshares, Inc.)
Conduct of Company Business. Except From the date hereof to the Closing, except as otherwise expressly set forth on Part 5.1 in this Agreement or in Section 5.01 of the Disclosure Schedule, the Company shall conduct the business, operations, activities and practices of the Company Disclosure Scheduleonly in the ordinary course, during in accordance with prudent practice and consistent with past practice. Without limiting the period from the Original Agreement Date and continuing until the earlier generality of the termination of this Agreement pursuant to its terms or the Closing (the “Pre-Closing Period”), Company agrees, except to the extent necessary to effect the transactions contemplated by the Company Stockholder Approval Matters or otherwise to the extent Albireo consents in writing, to carry on its business in substantially the same manner as being conducted as of the Original Agreement Date, 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. In addition, without limiting the foregoing, other than as expressly contemplated by this Agreement (including from the actions set forth on Part 5.1 of date hereof to the Company Disclosure Schedule)Closing, without obtaining the prior written consent of Albireo MSSC California or Marketing Specialists, Bromar shall not (which, in and shall cause the case of Section 5.1(h)(ii), will not be unreasonably withheld, conditioned or delayed), Company will Subsidiaries to not, and will not permit its Subsidiaries to:):
(a) amend incur any liabilities or obligations of any nature whatsoever (whether absolute, accrued, contingent or otherwise change any and whether due or to become due), except for liabilities or obligations for (i) purchases of raw material for use in the ordinary course of the Organizational DocumentsParowax Business, (ii) rent under the Leases, (iii) periodic drawdowns under the $3.5 million revolving credit line of the Company with Wellx Xxxgo (as in place on the date hereof), (iv) periodic drawdowns under the $5.0 million revolving line of credit with Wellx Xxxgo (as in place on the date hereof) if, prior to each such drawdown, the Company provides written notice to Marketing Specialists and MSSC California 34 identifying the date such drawdown is to be made, the amount thereof and the specific purpose or otherwise alter its corporate structure through mergerpurposes therefor and (v) other items incurred in the ordinary course of business and consistent with past practice, liquidationnone of which other items shall exceed $25,000 (considering liabilities or obligations arising from one transaction or a series of similar transactions, reorganization and all periodic installments or otherwisepayments under any lease (other than the Leases) or other agreement providing for periodic installments or payments, as a single obligation or liability);
(b) issue, sell, pledge, dispose increase (other than an increase resulting from the calculation of reserves in the ordinary course of business and in a manner consistent with past practice) or encumberchange any assumptions underlying, or authorize the issuance, sale, pledge, disposition or encumbrance ofmethods of calculating, any shares of capital stock of any classbad debt, or any options, warrants, convertible securities contingency or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including any phantom interest) (except for the issuance of shares of Company Common Stock issuable pursuant to Company Options or Company RSUs in accordance with the terms under the Company Stock Option Plan or pursuant to warrants, as the case may be, which options or warrants or rights, as the case may be, are outstanding on the Original Agreement Date)reserves;
(c) redeem, repurchase or otherwise acquire, directly or indirectly, any shares of Company Common Stock (other than pursuant to a currently outstanding repurchase right in favor of Company with respect to unvested shares, at no more than cost);
(d) incur any indebtedness or guarantee any indebtedness for borrowed money or issue or sell any debt securities or guarantee any debt securities or other obligations of others or sell, pledge, dispose of or create an Encumbrance with respect to any assets (except for dispositions of obsolete or worthless assets);
(e) accelerate, amend or change the period (or permit any acceleration, amendment or change) of exercisability of options or warrants or authorize cash payments in exchange for any options, except as may be required under any Company Option Plan, Contract or this Agreement or as may be required by applicable Legal Requirements;
(f) (i) declare, set aside, make or pay any dividend or 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 any securities of its Subsidiaries, or propose to do any of the foregoing;
(g) sell, assign, transfer, license, sublicense or otherwise dispose of any IP Rights other than a Permitted Disposition;
(h) (i) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any other material property or assets; (ii) enter into or amend any material terms of any Company Contract, grant any release or relinquishment of any material rights under any Company Contract or assign or sublet any lease; or (iii) enter into or amend any contract, agreement, commitment or arrangement to effect any of the matters prohibited by this Section 5.1(h);
(i) forgive any loans to any Person, including its employees, officers, directors or Affiliates;
(j) other than as required by Legal Requirements, increase the compensation payable or to become payable to its directors, officers, employees or consultants or grant any severance, change in control, retention or termination pay to, or enter into any employment, severance or similar agreement with, any director, officer, employee or consultant, or establish, adopt, enter into, terminate or amend any collective bargaining or similar agreement or Company Employee Plan (or any plan, program, agreement or arrangement that would be a Company Employee Plan if it were in existence on the Original Agreement Date), or take any action to accelerate the time of payment or vesting of any compensation or benefits or take any action to fund or secure the funding of any compensation or benefits (other than qualified retirement plan benefits);
(k) take any action, other than as required by applicable Legal Requirements or GAAP, to change accounting policies or procedures;
(l) (i) make or change any material Tax election inconsistent with past practices, (ii) change any material Tax accounting method, or (iii) settle or compromise any material federal, state, local or foreign Tax liability, except, in the case of clauses (i) and (ii), as required by Legal Requirements;
(m) pay, discharge or satisfy any claimsclaim, liabilities encumbrance, liability or obligations obligation (whether absolute, accrued, asserted or unasserted, contingent or otherwiseotherwise and whether due or to become due), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities and obligations which are reflected or reserved against in the Company Financials, 1996 Balance Sheet or which have been incurred since the date thereof in the ordinary course of business and consistent with past practice, or prepay any liability or obligation having a fixed maturity of more than 90 days from the date such liability or obligation was issued or incurred;
(d) permit, allow or suffer any of the Company Assets to be subjected to any new or additional mortgage, pledge, lien, encumbrance, restriction or charge of any kind (except for liens arising as a result of Taxes not yet owing) except for items subject to capital equipment leases not exceeding $10,000 in the aggregate;
(e) write down or write up the value of any Inventory (including write-downs by reason of shrinkage or mark-xxxxx), xetermine as collectible any notes or accounts receivable or any portion thereof which was previously considered uncollectible or write off as uncollectible (except for the automatic creation of a bad debt reserve for amounts due for more than 120 days) any notes or accounts receivable or any portion thereof other than in the ordinary course of business, but in no event to exceed $5,000 in the aggregate,
(f) cancel any amount of indebtedness in excess of $10,000 or waive any claims or rights of value in excess of $10,000;
(g) sell, transfer or otherwise dispose of any of the Company Assets with an aggregate value of more than $40,000, other than Inventory sold in the ordinary course of business;
(h) dispose of or permit to lapse any right to use any patent, trademark, assumed name, service mark, xxade name, copyright, license or application therefor or dispose of or disclose to any Person other than representatives of MSSC California or Marketing Specialists any trade secret, formula, process or know-how not theretofore a matter of public knowledge (other than disclosures in the ordinary course of business and consistent with past practice that would not materially diminish the value of such trade secrets, formulae, processes or know-how to the Company);
(i) grant any increase in the compensation (including, without limitation, any increase or change pursuant to any bonus, pension, profit-sharing, retirement or other plan or commitment) 35 payable to or to become payable to the Senior Employees, grant any general increase in the compensation payable to or to become payable to employees of the Company or, except in the ordinary course of business and consistent with past practice, grant any increase in the compensation payable or to become payable to individual employees;
(j) loan or advance any amount (except for advances in the ordinary course of business and consistent with past practice that do not in the aggregate exceed $20,000 and are not made as advances for personal loans) to, or sell, transfer or lease any of the Company Assets to, or enter into any agreement or arrangements with, any of the officers, directors, shareholders or employees of any Company or any of their respective affiliates (which affiliation is known to the Company);
(k) enter into any collective bargaining or labor agreement;
(l) make any single capital expenditure or commitment in excess of $20,000 for additions to property, plant, equipment or intangible capital assets or for any other purpose or make aggregate capital expenditures or commitments in excess of $40,000 for additions to property, plant, equipment or for any other purpose;
(m) make any change in any method of accounting or accounting practice or policy;
(n) enter into any partnership arrangements, joint development agreements agreement or strategic alliancescontract or commitment of the type required to be disclosed pursuant to Section 3.10 hereof or outside the ordinary course of business except as provided in Section 5.01(n) of the Disclosure Schedule;
(o) initiate terminate or amend in any litigationmaterial respect any material contract, actionlease, suitlicense, proceedingor other agreement to which the Company is a party;
(p) permit any option to renew any Lease or any option to purchase any property to expire or exercise any such option;
(q) issue any additional shares of capital stock of the Company or options, claim or arbitration warrants, rights (eachincluding, an “Action”without limitation, stock appreciation rights and phantom stock rights) or settle other securities exercisable for, convertible into or agree exchangeable for shares of capital stock of the Company;
(r) omit to settle do any Action act, or permit any act or omission to act, which may cause a breach of any contract, commitment or obligation of the Company, or any breach of any representation, warranty, covenant or agreement made by the Company herein;
(except s) pay its suppliers and other vendors in a manner and time not consistent with past practice;
(t) take any other action not in the ordinary course of business and consistent with past practice and prudent business practice or provided for any Action arising out of or related to in this Agreement or the transactions contemplated hereby)Agreement; or
(pu) takeagree, or agree whether in writing or otherwise otherwise, to take, do any of the actions described in Sections 5.1(a) through 5.1(o) above, or any action which would make any of the representations or warranties of Company contained in this Agreement untrue or incorrect or would prevent Company from performing, or cause Company not to perform, its covenants hereunder or would result in any of the conditions to the Acquisition set forth herein not being satisfiedforegoing. The Parties acknowledge and agree that (i) nothing contained in this Agreement shall give Albireo, directly or indirectly, the right to control or direct the operations of any Acquiring Company prior to the Closing, (ii) prior to the Closing, each Acquiring Company shall exercise, consistent with the terms and conditions of this Agreement, complete control over its operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of Albireo will be required with respect to any matter set forth in the Agreement to the extent the requirement of such consent would violate any applicable Legal Requirements.36
Appears in 1 contract
Samples: Merger Agreement (Richmont Marketing Specialists Inc)
