Conduct of Operations. The Seller covenants that, except as set forth in Schedule 5.2, from the date hereof to the applicable Effective Time, except as the Purchaser may approve otherwise in writing (such approval not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreement, the Seller shall conduct the Operations or cause the Facility/ Design Operations, as conducted by the applicable Designated Seller, to be conducted in the ordinary course consistent with past practice and will make all commercially reasonable efforts consistent with past practice to maintain the Operations and Assets, and to preserve its relationship with the Transferring Employees, suppliers, contractors and other service providers with whom the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure all representations and warranties of the Seller remain true and correct in all material respects as of such Closing. Except as expressly contemplated or permitted by this Agreement or set forth in Schedule 5.2 (which Schedule may not be amended after the date hereof), from the date hereof until the applicable Effective Time, the Seller will not do, and will cause the applicable Designated Seller not to do, any of the following without the prior written consent of the Purchaser, not to be unreasonably withheld : (a) sell, lease, license or otherwise dispose of, or agree to sell, lease, license or otherwise dispose of, any interest in any of the Facility/ Design Assets, except for sales of Inventory in the ord- inary course and Equipment no longer required in the Operations; (b) permit, allow or subject any of the Facility/ Design Assets or any part thereof to any material Lien, or suffer such to be imposed, except for Permitted Encumbrances; (c) amend any Assumed Contracts in a manner that is not in the ordinary course of business or that is material to the Operations, or terminate any Assumed Contracts, or enter into any Contracts which would be Assumed Contracts; (d) announce or make any material modification to any of the Seller's Employees Plans applicable to any Transferred Employee, except as required by applicable Law or in the ordinary course of business; (e) increase the base salary or wage rate payable to any Employee, except for increases required by a Collective Labour Agreement or otherwise required by Law, or made in the ordinary course of business consistent with past practice; (f) terminate, other than for cause, greater than fifteen (15) percent of the Key Employees, or greater than fifteen (15) percent of the Design Employees, provided, however, that Seller or Designated Seller shall inform Purchaser as soon as practicable prior to terminating, other that for cause, the employment of any such Employee. During the period from the date of this Agreement until the final Closing Date effected pursuant to this Agreement, both the Seller and the Purchaser shall advise on a regular and frequent basis the designated representative(s) of the Purchaser or a Designated Purchaser or Seller or Designated Seller, as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters in relation to the portion of the Operations that remains to be transferred to Purchaser as of such date, or any circumstance or event which to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or a material adverse effect on the Purchaser's or the Designated Purchaser's ability to perform its obligations pursuant to the Amended and Restated Master Contract Manufacturing Services Agreement. Notwithstanding the foregoing, the Seller shall be entitled to terminate any Open Purchase Orders and the purchase orders relating to contract workers, with notice to the Purchaser. In addition, Seller shall consult with Purchaser to the extent reasonable practicable prior to any amendment of an Assumed Contract, and shall advise as soon as reasonably practicable following any execution of such amendment.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Flextronics International LTD), Asset Purchase Agreement (Flextronics International LTD)
Conduct of Operations. The Seller covenants that, except as set forth in Schedule 5.2, from the date hereof to the applicable Effective Time, except as the Purchaser may approve otherwise in writing (such approval not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreement, the Seller shall conduct the Operations or cause the Facility/ Facility/Design Operations, as conducted by the applicable Designated Seller, to be conducted in the ordinary course consistent with past practice and will make all commercially reasonable efforts consistent with past practice to maintain the Operations and Assets, and to preserve its relationship with the Transferring Employees, suppliers, contractors and other service providers with whom the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure all representations and warranties of the Seller remain true and correct in all material respects as of such Closing. Except as expressly contemplated or permitted by this Agreement or set forth in Schedule 5.2 (which Schedule may not be amended after the date hereof), from the date hereof until the applicable Effective Time, the Seller will not do, and will cause the applicable Designated Seller not to do, any of the following without the prior written consent of the Purchaser, not to be unreasonably withheld withheld:
(a) sell, lease, license or otherwise dispose of, or agree to sell, lease, license or otherwise dispose of, any interest in any of the Facility/ Facility/Design Assets, except for sales of Inventory in the ord- inary ordinary course and Equipment no longer required in the Operations;
(b) permit, allow or subject any of the Facility/ Facility/Design Assets or any part thereof to any material Lien, or suffer such to be imposed, except for Permitted Encumbrances;
(c) amend any Assumed Contracts in a manner that is not in the ordinary course of business or that is material to the Operations, or terminate any Assumed Contracts, or enter into any Contracts which would be Assumed Contracts;
(d) announce or make any material modification to any of the Seller's ’s Employees Plans applicable to any Transferred Employee, except as required by applicable Law or in the ordinary course of business;
(e) increase the base salary or wage rate payable to any Employee, except for increases required by a Collective Labour Agreement or otherwise required by Law, or made in the ordinary course of business consistent with past practice;
(f) terminate, other than for cause, greater than fifteen (15) percent of the Key Employees, or greater than fifteen (15) percent of the Design Employees, provided, however, that Seller or Designated Seller shall inform Purchaser as soon as practicable prior to terminating, other that for cause, the employment of any such Employee. During the period from the date of this Agreement until the final Closing Date effected pursuant to this Agreement, both the Seller and the Purchaser shall advise on a regular and frequent basis the designated representative(s) of the Purchaser or a Designated Purchaser or Seller or Designated Seller, as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters in relation to the portion of the Operations that remains to be transferred to Purchaser as of such date, or any circumstance or event which to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or a material adverse effect on the Purchaser's ’s or the Designated Purchaser's ’s ability to perform its obligations pursuant to the Amended and Restated Master Contract Manufacturing Services Agreement. Notwithstanding the foregoing, the Seller shall be entitled to terminate any Open Purchase Orders and the purchase orders relating to contract workers, with notice to the Purchaser. In addition, Seller shall consult with Purchaser to the extent reasonable practicable prior to any amendment of an Assumed Contract, and shall advise as soon as reasonably practicable following any execution of such amendment.
Appears in 1 contract
Conduct of Operations. (a) The Seller covenants thatshall operate the Project on a commercial basis as if the Seller and the Seller Guarantors, except as set forth if any, had the full economic interest in Schedule 5.2, the gold and silver produced from the date hereof Project in the absence of this Agreement, and as if the Seller was entitled to receive the applicable Effective TimeGold Market Price for the gold included in the Payable Minerals and the Silver Market Price for the silver contained included in the Payable Minerals, except as the Purchaser may approve otherwise and in writing (such approval not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreementregard, the Seller shall conduct the Operations or cause the Facility/ Design Operations, as conducted by the applicable Designated Seller, use its commercially reasonably efforts to be conducted in the ordinary course consistent with past practice timely maximize production of gold and will make all commercially reasonable efforts consistent with past practice to maintain the Operations and Assets, and to preserve its relationship with the Transferring Employees, suppliers, contractors and other service providers with whom the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure all representations and warranties of the Seller remain true and correct in all material respects as of such Closing. Except as expressly contemplated or permitted by this Agreement or set forth in Schedule 5.2 (which Schedule may not be amended after the date hereof), silver from the date hereof until Project with a view to ensuring that Commercial Production is reached as soon as possible following the applicable Effective TimeFirst Tranche Closing Date. The Seller shall ensure that: (i) all cut-off grade, short term mine planning and production decisions concerning the Seller will not do, Project shall be based on gold and will cause silver prices typical of normal industry practice; and (ii) all longer term planning and resource and reserve calculations concerning the applicable Designated Seller not to do, any of the following without the prior written consent of the Purchaser, not to be unreasonably withheld :
(a) sell, lease, license or otherwise dispose of, or agree to sell, lease, license or otherwise dispose of, any interest in any of the Facility/ Design Assets, except for sales of Inventory in the ord- inary course Project shall use gold and Equipment no longer required in the Operations;silver prices based on normal industry practice.
(b) permitSubject to Sections 2.5, allow or subject 6.1(a) and 6.4 and the other specific sections of this Agreement to the contrary, all decisions regarding the Project, including: (i) the methods, extent, times, procedures and techniques of any of development and mining related to the Facility/ Design Assets Project or any part portion thereof; (ii) spending on operating and capital expenditures; (iii) leaching, milling, processing or extraction; (iv) decisions to operate or continue to operate the Project or any portion thereof, including with respect to closure and care and maintenance; (v) decisions to take or refrain from taking any action in order to maintain gold and silver recovery or production; and (vi) the sale of Minerals and sales strategy including decisions regarding the sale of gold and silver and terms thereof to any material Lien(except as provided herein); shall be made by the Seller, or suffer such to be imposed, except for Permitted Encumbrances;in its sole discretion.
(c) amend any Assumed Contracts Notwithstanding Sections 6.1(a) and 6.1(b), the Seller shall perform all mining operations and activities pertaining to or in a manner that is not respect of the Project in accordance, in all material respects, with all Applicable Laws, Permits and other authorizations, and accepted mining, processing, engineering and environmental practices prevailing in the ordinary course of business or that is material to the Operations, or terminate any Assumed Contracts, or enter into any Contracts which would be Assumed Contracts;mining industry in Alaska.
(d) announce or make any material modification The Seller shall obtain and maintain all necessary certifications in Alaska in order to any of the Seller's Employees Plans applicable to any Transferred Employee, except as required by applicable Law or in the ordinary course of business;carry on business therein.
(e) increase the base salary or wage rate payable to any Employee, except for increases required by a Collective Labour Agreement or otherwise required by Law, or made in the ordinary course of business consistent with past practice;
(f) terminate, other than for cause, greater than fifteen (15) percent of the Key Employees, or greater than fifteen (15) percent of the Design Employees, provided, however, that Seller or Designated The Seller shall inform Purchaser as soon as practicable prior to terminatingcomply with all terms of its material claims, other that for causeleases and patents, including the employment of any such Employee. During the period from the date of this Agreement until the final Closing Date effected pursuant to this Agreement, both the Seller Underlying Lease and the Purchaser shall advise on a regular and frequent basis the designated representative(s) of the Purchaser or a Designated Purchaser or Seller or Designated Seller, as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters in relation to the portion of the Operations that remains to be transferred to Purchaser as of such date, or any circumstance or event which to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or a material adverse effect on the Purchaser's or the Designated Purchaser's ability to perform its obligations pursuant to the Amended and Restated Master Contract Manufacturing Services Agreement. Notwithstanding the foregoing, the Seller shall be entitled to terminate any Open Purchase Orders and the purchase orders relating to contract workers, with notice to the Purchaser. In addition, Seller shall consult with Purchaser to the extent reasonable practicable prior to any amendment of an Assumed Contract, and shall advise as soon as reasonably practicable following any execution of such amendmentPermits.
Appears in 1 contract
Samples: Gold and Silver Prepayment Agreement (Gold Torrent, Inc.)
Conduct of Operations. The Seller covenants that(a) Except (i) as expressly required by this Agreement, except (ii) as set forth in on Schedule 5.24.1, from the date hereof (iii) as consented to the applicable Effective Time, except as the Purchaser may approve otherwise in writing in advance by Purchaser (such approval not to be unreasonably withheld withheld, conditioned or delayed) or (iv) as otherwise expressly contemplated required by Applicable Law or the terms of any Material Contract, from the Effective Date through and including the earlier of the termination of this Agreement or the applicable Local Sales AgreementClosing Date (the “Interim Period”), the Seller shall cause the Acquired Companies to: (A) conduct the Operations or cause business of the Facility/ Design Operations, as conducted by the applicable Designated Seller, to be conducted Acquired Companies in the ordinary course of business consistent with past practice practice; (B) use Commercially Reasonable Efforts to preserve, maintain and will make all commercially reasonable efforts consistent with past practice to maintain the Operations protect their respective businesses and Assets, ordinary wear and tear excepted, including by maintaining their business and organization and their relationships with Persons having business dealings with respect to preserve its relationship with the Transferring Employeesconduct of their business (including customers, suppliers, contractors and other service providers with whom the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure Governmental Authorities); and (C) maintain all representations and warranties of the Seller remain true and correct in all material respects as of such Closing. Issued Permits.
(b) Except (i) as expressly contemplated or permitted required by this Agreement or (including the Reorganization), (ii) as set forth on Schedule 4.1, (iii) as consented to in Schedule 5.2 writing in advance by Purchaser (which Schedule may not be amended after the date hereof), from the date hereof until the applicable Effective Time, the Seller will not do, and will cause the applicable Designated Seller not to do, any of the following without the prior written consent of the Purchaser, not to be unreasonably withheld withheld, conditioned or delayed) or (iii) as required by Applicable Law or the terms of any Material Contract, during the Interim Period, Seller shall not (with respect to the Acquired Companies) and shall cause the Acquired Companies not to:
(ai) amend or otherwise change their certificates of formation, limited liability company agreements or equivalent organizational documents;
(ii) authorize for issuance, issue, grant, sell, deliver, dispose of, pledge, encumber or otherwise subject to any Lien any Interests in the Acquired Companies, or any options, warrants, convertible securities or other Rights of any kind to acquire any such Interests or repurchase, redeem or enter into any Contract with respect to the Interests in the Acquired Companies;
(iii) purchase any Interests in or other securities of any corporation, partnership, limited liability company or other business organization, or make any loans, advances or capital contributions to, or investments in, any Person or other business organization (other than (A) any Acquired Company and (B) Permitted Investments (as defined in the Sale Leaseback Documents);
(iv) engage in any new line of business;
(v) fail to maintain the existence of any Acquired Company, merge or consolidate any Acquired Company with any other Person or cause any Acquired Company to acquire all or substantially all of the Assets of any other Person;
(vi) sell, leasetransfer, license assign, convey, distribute or otherwise dispose of, or agree to sell, lease, license permit or otherwise dispose ofallow the creation or imposition of any Lien (other than Permitted Liens) on, any interest Assets currently owned by the Acquired Companies having an individual value in any excess of $100,000 or an aggregate value in excess of $250,000, other than obsolete Assets, surplus Assets or Assets no longer used or useful in the construction or operation or maintenance of the Facility/ Design Assets, except for sales of Inventory in the ord- inary course and Equipment no longer required in the OperationsProjects;
(bvii) permitenter into or adopt a plan of complete or partial liquidation, allow dissolution, merger, consolidation, division, restructuring, recapitalization or subject other reorganization of any Acquired Company or any of the Facility/ Design Assets or any part thereof to any material Lientheir respective businesses, or suffer such to be imposed, except for Permitted Encumbrances;
(c) amend any Assumed Contracts in a manner that is not in the ordinary course of business or that is material to the Operations, or terminate any Assumed Contracts, or enter into any Contracts which would be Assumed Contracts;
(d) announce or make any material modification to any of the Seller's Employees Plans applicable to any Transferred Employee, except as required by applicable Law or in the ordinary course of otherwise wind up their business;
(eviii) increase the base salary or wage rate payable to any Employeeincur, except for increases required by a Collective Labour Agreement create, assume or otherwise required by Lawbecome liable for any indebtedness for borrowed money or issue any debt securities;
(ix) assume, guarantee or made otherwise become liable or responsible for any liability of any Person, other than the assumption or guarantee of obligations of the Acquired Companies in the ordinary course of business consistent with past practice;
(fx) terminate, other than for causefail to comply with in any material respect, greater than fifteen (15) percent of the Key Employeesmaterially amend or modify, supplement, grant any material waiver under, or greater than fifteen (15) percent of the Design Employeesprovide any material Consent under, providedany Material Contract, however, that Seller or Designated Seller shall inform Purchaser except as soon as practicable prior to terminating, other that for cause, the employment of any such Employee. During the period from the date of expressly contemplated by this Agreement until the final Closing Date effected pursuant to this Agreement, both the Seller and the Purchaser shall advise on a regular and frequent basis the designated representative(s) of the Purchaser or a Designated Purchaser or Seller or Designated Seller, as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters in relation to the portion of the Operations that remains to be transferred to Purchaser as of such date, or any circumstance other Transaction Document;
(xi) terminate, assign or event which to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations materially amend or the Assetsmodify, or a material adverse any Issued Permit;
(xii) enter into any Contract that if in effect on the Purchaser's Effective Date would be a Material Contract;
(xiii) grant or announce any increase in the salaries, bonuses or other compensation or benefits payable by the Acquired Companies to any of their officers, directors, managers, or employees;
(xiv) initiate any Action;
(xv) enter into any voluntary settlement, conciliation or similar agreement with respect to, or otherwise compromise any dispute, claim or Action, that individually or in the aggregate will result in payment by any Acquired Company following Closing unless such payments are funded in full by Seller prior to Closing
(xvi) voluntarily settle, compromise, cancel, forgive, waive or release any other debts, claims or rights of the Acquired Companies;
(xvii) authorize or make capital expenditures, in the aggregate, in excess of $100,000, unless such expenditures are funded in full by Seller prior to Closing;
(a) hire any employee or (b) enter into any employment or severance agreement or any agreement providing for any compensation to any employee of Seller or Affiliates thereof (other than any Acquired Company) that is payable by any Acquired Company;
(xix) adopt or contribute to any Benefit Plan;
(xx) make any change in any method of accounting or accounting practice, except as required by GAAP;
(xxi) make any new, change any existing or revoke any election with respect to Taxes, change any method of accounting with respect to Taxes, amend any material Tax Return, file any Tax Return that is prepared on a basis that is materially inconsistent with the elections, accounting methods, conventions and principles of taxation used for the most recent taxable periods for which comparable Tax Returns involving similar Tax items have been filed, enter into any closing agreement with respect to any Tax, surrender any right to claim a refund of a material amount of Taxes, or consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment;
(xxii) fail to discharge any material liability of any Acquired Company or to make any material payment of any Acquired Company as it comes due except in connection with a good faith dispute;
(xxiii) vary the cash balance or the Designated Purchaser's ability face amount of any letter of credit posted to perform its obligations pursuant satisfy any minimum balance in any reserve account under the Sale Leaseback Documents (including by way of depositing a new letter of credit or amending or modifying existing letters of credit), other than: (A) any increase in the cash balance in such reserve account resulting from the ordinary course application of revenue in accordance with the waterfall under the Master Depositary Agreement (as defined in the Participation Agreement); and (B) any withdrawal of cash or a draw under a letter of credit expressly for the permitted use of such funds from such reserve account under the Sale Leaseback Documents; or
(xxiv) agree or commit to the Amended and Restated Master Contract Manufacturing Services Agreement. Notwithstanding do any of the foregoing, the Seller shall be entitled to terminate any Open Purchase Orders and the purchase orders relating to contract workers, with notice to the Purchaser. In addition, Seller shall consult with Purchaser to the extent reasonable practicable prior to any amendment of an Assumed Contract, and shall advise as soon as reasonably practicable following any execution of such amendment.
Appears in 1 contract
Samples: Agreement for Purchase of Membership Interests (Ormat Technologies, Inc.)
Conduct of Operations. The Seller covenants that, except as set forth in Schedule 5.2, from the date hereof to the applicable Effective Time, except as the Purchaser may approve otherwise in writing (such approval not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreement, the Seller shall conduct the Operations or cause the Facility/ Design Operations, as conducted by the applicable Designated Seller, to be conducted in the ordinary course consistent with past practice and will make all commercially reasonable efforts consistent with past practice to maintain the Operations and Assets, and to preserve its relationship with the Transferring Employees, suppliers, contractors and other service providers with whom the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure all representations and warranties of the Seller remain true and correct in all material respects as of such Closing. Except as expressly contemplated or permitted by this Agreement or set forth in Schedule 5.2 (which Schedule may not be amended after the date hereof), from the date hereof until the applicable Effective Time, the Seller will not do, and will cause the applicable Designated Seller not to do, any of the following without the prior written consent of the Purchaser, not to be unreasonably withheld :
(a) sellSubject to Subsection 11(b) below, leaseall decisions concerning methods, license the extent, times, procedures and techniques of any: (i) exploration, development and mining related to the Mining Property; (ii) leaching, milling, processing or otherwise dispose ofextraction treatment; and (iii) materials to be introduced on or to the Mining Property or produced therefrom, shall be made by the Owner in its sole and absolute discretion, and all decisions concerning the sale or agree to sellother disposition of Minerals from the Mining Property, lease, license or otherwise dispose of, any interest in any of shall be made by the Facility/ Design Assets, except for sales of Inventory in the ord- inary course and Equipment no longer required in the Operations;Owner acting with commercial reasonableness.
(b) permit, allow The Owner shall not be required to explore for or subject mine Minerals but shall process any Minerals that it mines from the Mining Property as expeditiously as commercially reasonably possible. No Royalty shall be due on and the Owner shall not be responsible for or obliged to make any Royalty payments for Minerals or Mineral value lost in any mining or processing of the Facility/ Design Assets Minerals conducted in accordance with accepted mining or any part thereof to any material Lien, or suffer such to be imposed, except for Permitted Encumbrances;processing practices.
(c) amend The Owner shall be entitled to abandon the Mining Property (or any Assumed Contracts in a manner part thereof, including, for greater certainty, all or any part of Additional Property, if any), provided that it shall give 30 days’ prior written notice to the Holder of its intention to do so. Upon subsequent escheat, forfeiture or conveyance back to the governmental entity that is not in entitled to the ordinary course Mining Property (or any part thereof) upon such abandonment, this NSR Agreement shall be null and void and of business no further force or effect with respect to the Mining Property (or any part thereof) that have been abandoned, but further provided that if the Owner or any Affiliate of the Owner re-stakes the land (or any part thereof, including, for greater certainty, any Additional Property) subject to the Mining Property at any time after such escheat, forfeiture or conveyance back to the governmental entity that is material entitled to the OperationsMining Property (or any part thereof) upon such abandonment, or terminate this NSR Agreement and the Royalty shall again be of force and effect and shall apply to such re-staked lands and any Assumed ContractsMinerals derived therefrom. For greater certainty, or enter into any Contracts which would be Assumed Contracts;this NSR Agreement shall remain in force and effect with respect to that portion of the Mining Property that have not been abandoned pursuant to this Section 11(c).
(d) announce Any net proceeds received as compensation for the expropriation or make any material modification to any other involuntary surrender of the Seller's Employees Plans applicable Mining Property or any Minerals derived from the Mining Property to any Transferred Employeea third party, except as required by applicable Law after deducting all costs associated with such expropriation or in the ordinary course of business;other involuntary surrender, including all legal, accounting, valuation and other professional advisor fees, shall be deemed to be Net Smelter Returns hereunder.
(e) increase For greater certainty, nothing in this NSR Agreement shall prohibit the base salary or wage rate payable to any Employee, except for increases required by a Collective Labour Agreement or otherwise required by Law, or made in Owner from acquiring additional properties that are within the ordinary course of business consistent with past practice;
(f) terminate, other than for cause, greater than fifteen (15) percent vicinity of the Key EmployeesMining Property and, or greater than fifteen (15) percent in such case, no Royalty shall be payable in respect of such properties unless such properties constitute Additional Property within the meaning of the Design Employees, provided, however, that Seller or Designated Seller shall inform Purchaser as soon as practicable prior to terminating, other that for cause, the employment of any such Employee. During the period from the date of this Agreement until the final Closing Date effected pursuant to this JV Agreement, both in which case the Seller and the Purchaser Royalty shall advise on a regular and frequent basis the designated representative(s) of the Purchaser or a Designated Purchaser or Seller or Designated Seller, as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters be payable in relation to the portion of the Operations that remains to be transferred to Purchaser as respect of such date, or any circumstance or event which to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or a material adverse effect on the Purchaser's or the Designated Purchaser's ability to perform its obligations pursuant to the Amended and Restated Master Contract Manufacturing Services Agreement. Notwithstanding the foregoing, the Seller shall be entitled to terminate any Open Purchase Orders and the purchase orders relating to contract workers, with notice to the Purchaser. In addition, Seller shall consult with Purchaser to the extent reasonable practicable prior to any amendment of an Assumed Contract, and shall advise as soon as reasonably practicable following any execution of such amendmentproperties.
Appears in 1 contract
Samples: Option and Joint Venture Agreement
Conduct of Operations. The Seller covenants that, except as set forth in Schedule 5.2, from the date hereof to the applicable Effective Time, except as the Purchaser may approve otherwise in writing (such approval not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreement, the Seller shall conduct the Operations or cause the Facility/ Design Operations, as conducted by the applicable Designated Seller, to be conducted in the ordinary course consistent with past practice and will make all commercially reasonable efforts consistent with past practice to maintain the Operations and Assets, and to preserve its relationship with the Transferring Employees, suppliers, contractors and other service providers with whom the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure all representations and warranties of the Seller remain true and correct in all material respects as of such Closing. Except as expressly contemplated or permitted by this Agreement or set forth in Schedule 5.2 (which Schedule may not be amended after the date hereof), from the date hereof until the applicable Effective Time, the Seller will not do, and will cause the applicable Designated Seller not to do, any of the following without the prior written consent of the Purchaser, not to be unreasonably withheld :
(a) sell, lease, license or otherwise dispose of, or agree to sell, lease, license or otherwise dispose of, any interest in any of the Facility/ Design Assets, except for sales of Inventory in the ord- inary course and Equipment no longer required in the Operations;
(b) permit, allow or subject any of the Facility/ Design Assets or any part thereof to any material Lien, or suffer such to be imposed, except for Permitted Encumbrances;
(c) amend any Assumed Contracts in a manner that is not in the ordinary course of business or that is material to the Operations, or terminate any Assumed Contracts, or enter into any Contracts which would be Assumed Contracts;
(d) announce or make any material modification to any of the Seller's Employees Plans applicable to any Transferred Employee, except as required by applicable Law or in the ordinary course of business;
(e) increase the base salary or wage rate payable to any Employee, except for increases required by a Collective Labour Agreement or otherwise required by Law, or made in the ordinary course of business consistent with past practice;
(f) terminate, other than for cause, greater than fifteen (15) percent of the Key Employees, or greater than fifteen (15) percent of the Design Employees, provided, however, that Seller or Designated Seller shall inform Purchaser as soon as practicable prior to terminating, other that for cause, the employment of any such Employee. During the period from the date of this Agreement until to the final Closing Date effected pursuant to Closing, the Business shall be operated by Seller solely in the usual and ordinary course of such business and in compliance with the terms of this Agreement, both and all additions to and substitutions for and changes of form of the Assets occurring from the date hereof to the Closing shall be deemed to constitute Assets hereunder. Without limiting the generality of the foregoing:
(a) Seller and Shareholder will use their best efforts to preserve the Purchaser shall advise on a regular business and frequent basis organization of Seller's business so as to:
(i) maintain and keep in full force and effect the designated representative(sContracts (including, without limitation, the Contracts with Seller's vendors) in accordance with their existing terms; (ii) keep available the services of the Purchaser present employees and agents of Seller; (iii) maintain the integrity of all confidential information regarding the business; and (iv) preserve the good will of, and Seller's business and contractual relationships with, suppliers, patients, licensors and others having business relations with Seller.
(b) No new assets will be acquired by or on behalf of Buyer without Buyer's written consent except in the ordinary course of business and in an individual amount not to exceed $5,000.00. Buyer shall be advised prior to Closing of any new such Assets.
(c) All Assets of a Designated Purchaser or Seller or Designated Seller, tangible nature will be kept and maintained in as the case may be, good operating condition and repair as they are on the general status of ongoing operations date hereof, ordinary wear and any Employee terminations tear excepted, and labour relations matters in relation to the portion extent applicable, all intangible Assets will be maintained in full force and effect.
(d) Seller will continue to collect its accounts receivable through the Closing and pay its accounts payable in a commercially reasonable manner and in accordance with present practice or as otherwise agreed upon by Buyer and Seller.
(e) No expenditure or commitment for the purchase of any other capital asset shall be made or entered into without Buyer's written consent.
(f) Seller will not sell, transfer or encumber any material assets or property relating to Seller's business, except in the usual and ordinary course of business and except for cash applied in payment of Seller's liabilities in the usual and ordinary course of its business or make any payments or distributions to any of its officers, directors, shareholders or employees except for compensation to employees in the usual and ordinary course of its business at the rates specified in Schedule 3.13 and cash distributions to its stockholders of cash owned by Seller immediately prior to the Closing and not transferred to Buyer, and which in no event shall include the proceeds of the Operations that remains to be Assets transferred to Purchaser as of such date, or any circumstance or event which to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or a material adverse effect on the Purchaser's or the Designated Purchaser's ability to perform its obligations pursuant to the Amended and Restated Master Contract Manufacturing Services Agreement. Notwithstanding the foregoing, the Buyer hereunder.
(g) Seller shall not otherwise incur or pay any liability other than in the ordinary course of business with respect to Seller's business or on behalf of Buyer.
(h) No litigation shall be entitled to terminate any Open Purchase Orders and instituted or compromised or settled by Seller without Buyer's prior written consent.
(i) Until the purchase orders relating to contract workers, with notice to the Purchaser. In additionClosing, Seller shall consult maintain adequate professional liability insurance.
(j) Seller will take such actions as Buyer reasonably requests and otherwise use its best efforts to cause fulfillment of all the conditions to which the parties' obligations are subject.
(k) Seller and Shareholder will promptly notify Buyer in writing if any of them is advised or is aware that any patient or supplier (including Seller's patients) of Seller's business intends to cease doing business with Purchaser to the extent reasonable practicable prior to any amendment of an Assumed Contract, and shall advise as soon as reasonably practicable following any execution of such amendmentSeller.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Embassy Acquisition Corp)
Conduct of Operations. The Seller covenants thatFrom and after the date hereof and to the Closing, except as set forth in Schedule 5.2, from the date hereof to the applicable Effective Time, except as the Purchaser may approve otherwise in writing (such approval not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreementas Purchaser shall otherwise consent in writing, the Seller which consent shall conduct the Operations or not be unreasonably withheld, Pfizer agrees that it will, and it will cause the Facility/ Design OperationsAsset Selling Corporations to, as conducted by continue to manufacture, store, distribute and sell the applicable Designated Seller, to be conducted Products in the ordinary and usual course consistent with past practice and will make all commercially reasonable efforts consistent with past practice to maintain the Operations and Assetspractice, and use its reasonable best efforts to preserve its relationship intact relationships with the Transferring Employeescustomers, suppliers, contractors suppliers and other service providers with whom third parties and keep available the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure all representations and warranties services of the Seller remain true present Employees. From and correct in all material respects after the date hereof and to the Closing, except as of such Closing. Except as expressly otherwise contemplated or permitted by this Agreement or set forth as Purchaser shall otherwise consent in Schedule 5.2 (writing, which Schedule may consent shall not be amended after the date hereof)unreasonably withheld, from the date hereof until the applicable Effective Time, the Seller will not doPfizer covenants and agrees that it shall, and will it shall cause the applicable Designated Seller not Asset Selling Corporations, in each case with respect to dothe Business, any of the following without the prior written consent of the Purchaser, not to be unreasonably withheld to:
(a) sell, lease, license or otherwise dispose of, or agree to sell, lease, license or otherwise dispose of, any interest in any of maintain insurance coverage for the Facility/ Design Assets, except for sales of Inventory in the ord- inary course and Equipment no longer required in the OperationsConveyed Assets at levels consistent with presently existing levels so long as such insurance is available at commercially reasonable rates;
(b) permitcomplete the emission control project regarding an air pollution abatement system at the Belgian Facility;
(c) not incur, allow create or subject assume any Lien with respect to any Conveyed Assets outside of the Facility/ Design Assets or any part thereof to any material Lienordinary course of business consistent with past practice, or suffer such to be imposed, except for other than Permitted Encumbrances;
(cd) amend not acquire or dispose of any Assumed Contracts in a manner that is not in Conveyed Assets outside of the ordinary course of business or consistent with past practice, except for the transfer of Assets that is material constitute the Brazilian "estabelecimento" by Laboratorios Pfizer do Brasil Ltda. to the Operations, or terminate any Assumed Contracts, or enter into any Contracts which would be Assumed ContractsPhibro Saude Internacional Ltda.;
(de) announce not increase or make any material modification to any enhance the compensation or benefits of the Seller's Employees Plans applicable to any Transferred Employee, except as required by applicable Law or other than in the ordinary course of business;
(ef) increase not enter into any contracts which provide for annual payment obligations of the base salary or wage rate payable to Business in excess of $100,000;
(g) not amend any Employee, except for increases required by a Collective Labour Agreement or otherwise required by Lawterm of, or made in waive any right under, any Assumed Contract outside of the ordinary course of business consistent with past practice;
(fh) terminatefrom November 1, 2000 through the Closing Date, not make any sales of Products other than for cause, greater than fifteen pursuant to then prevailing normal terms and pricing; and
(15i) percent not agree to take any of the Key Employees, or greater than fifteen actions described in subparagraphs (15c) percent of the Design Employees, provided, however, that Seller or Designated Seller shall inform Purchaser as soon as practicable prior to terminating, other that for cause, the employment of any such Employee. During the period from the date of this Agreement until the final Closing Date effected pursuant to this Agreement, both the Seller and the Purchaser shall advise on a regular and frequent basis the designated representative(sthrough (h) of the Purchaser or a Designated Purchaser or Seller or Designated Seller, as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters in relation to the portion of the Operations that remains to be transferred to Purchaser as of such date, or any circumstance or event which to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or a material adverse effect on the Purchaser's or the Designated Purchaser's ability to perform its obligations pursuant to the Amended and Restated Master Contract Manufacturing Services Agreement. Notwithstanding the foregoing, the Seller shall be entitled to terminate any Open Purchase Orders and the purchase orders relating to contract workers, with notice to the Purchaser. In addition, Seller shall consult with Purchaser to the extent reasonable practicable prior to any amendment of an Assumed Contract, and shall advise as soon as reasonably practicable following any execution of such amendmentabove.
Appears in 1 contract
Samples: Asset Purchase Agreement (Philipp Brothers Chemicals Inc)
Conduct of Operations. The Seller covenants that, except as set forth in Schedule 5.2, from From the date hereof until the Closing, --------------------- except as otherwise permitted or contemplated by this Agreement (including without limitation any action described below to the applicable Effective Timeextent necessary or appropriate to consummate the transactions contemplated by Section 2.1 hereof) or as otherwise consented to by Purchaser in writing, except as the Purchaser may approve otherwise in writing (such approval consent not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreement, the Seller shall conduct the Operations or cause the Facility/ Design Operations, as conducted by Subsidiaries:
(a) To carry on the applicable Designated Seller, to be conducted business and operations of the Subsidiaries in the ordinary course consistent with past practice practices and will make all use commercially reasonable efforts consistent with past practice to maintain preserve intact their present organization, to keep available the Operations services of the present officers and Assets, employees and to preserve its relationship intact their relationships with the Transferring Employeescustomers, suppliers, contractors suppliers and other service providers others having material business dealings with whom the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure all representations and warranties each of the Seller remain true and correct in all material respects as of such Closing. Except as expressly contemplated or permitted by this Agreement or set forth in Schedule 5.2 (which Schedule may not be amended after the date hereof), from the date hereof until the applicable Effective Time, the Seller will not do, and will cause the applicable Designated Seller not to do, any of the following without the prior written consent of the Purchaser, not to be unreasonably withheld :
(a) sell, lease, license or otherwise dispose of, or agree to sell, lease, license or otherwise dispose of, any interest in any of the Facility/ Design Assets, except for sales of Inventory in the ord- inary course and Equipment no longer required in the Operationsthem;
(b) permitTo maintain their books of account and records in their usual, allow or subject any of the Facility/ Design Assets or any part thereof to any material Lienregular and ordinary manner, or suffer such to be imposed, except for Permitted Encumbrancesconsistent with their past practice;
(c) amend To promptly make available to Purchaser copies of all filings made by Seller with any Assumed Contracts federal, state or foreign Governmental Authority in a manner that is not in connection with this Agreement and the ordinary course of business or that is material to the Operations, or terminate any Assumed Contracts, or enter into any Contracts which would be Assumed Contractstransactions contemplated hereby;
(d) announce Not to settle or make compromise any material modification to Proceeding or threatened Proceeding involving any of them, their assets or any real property owned or leased by any of them if the Seller's Employees Plans applicable to any Transferred Employeeamount at issue exceeds $50,000.00, except as required by applicable Law for any Proceeding included among the Excluded Assets or in the ordinary course of businessExcluded Liabilities;
(e) increase the base salary Not to enter into any contract or wage rate payable agreement which involves total consideration to be paid or received by any Employee, except for increases required by a Collective Labour Agreement or otherwise required by Law, or made Subsidiary in excess of $50,000 other than in the ordinary course of business consistent with past practice;
(f) terminateNot to modify, amend or terminate any Material Contract in any material respect, waive, release, relinquish or assign any material right under any Material Contract or other material right or claim, or cancel or forgive any indebtedness owed to any of them, other than, in each case, in the ordinary course of business consistent with past practice;
(g) Not to declare or pay dividends or make other shareholder distributions;
(h) Not to amend the articles of incorporation or by-laws or other charter documents (including any partnership agreement) of any Subsidiary;
(i) Not to increase the compensation payable or to become payable to any officer, director or employee of any Subsidiary, other than for cause, greater than fifteen in the ordinary course of business consistent with past practice or as required by law (and in no event in excess of 15) percent of the Key Employees, or greater than fifteen (15) percent of the Design Employees, provided, however, that Seller or Designated Seller shall inform Purchaser as soon as practicable prior to terminating, other that for cause, the employment of any such Employee. During the period from the date of this Agreement until the final Closing Date effected pursuant to this Agreement, both the Seller and the Purchaser shall advise on a regular and frequent basis the designated representative(s) of the Purchaser or a Designated Purchaser or Seller or Designated Seller, as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters in relation to the portion of the Operations that remains to be transferred to Purchaser as % of such date, or any circumstance or event which to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or a material adverse effect on the Purchaserindividual's or the Designated Purchaser's ability to perform its obligations pursuant to the Amended and Restated Master Contract Manufacturing Services Agreement. Notwithstanding the foregoing, the Seller shall be entitled to terminate any Open Purchase Orders and the purchase orders relating to contract workers, with notice to the Purchaser. In addition, Seller shall consult with Purchaser to the extent reasonable practicable prior to any amendment of an Assumed Contract, and shall advise as soon as reasonably practicable following any execution of such amendment.compensation);
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Cyprus Amax Minerals Co)
Conduct of Operations. The Seller covenants that, except as set forth in Schedule 5.2, from the date hereof to the applicable Effective Time, except as the Purchaser may approve otherwise in writing (such approval not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreement, the Seller shall conduct the Operations or cause the Facility/ Design Operations, as conducted by the applicable Designated Seller, to be conducted in the ordinary course consistent a. Except with past practice and will make all commercially reasonable efforts consistent with past practice to maintain the Operations and Assets, and to preserve its relationship with the Transferring Employees, suppliers, contractors and other service providers with whom the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure all representations and warranties of the Seller remain true and correct in all material respects as of such Closing. Except as expressly contemplated or permitted by this Agreement or set forth in Schedule 5.2 (which Schedule may not be amended after the date hereof), from the date hereof until the applicable Effective Time, the Seller will not do, and will cause the applicable Designated Seller not to do, any of the following without the prior written consent of the PurchaserBuyer, the Sellers shall not prior to be unreasonably withheld the Closing Date:
(ai) mortgage, pledge or subject to any lien, security interest or encumbrance, any of the Assets;
(ii) sell, leaseassign, license transfer, lease or otherwise dispose of, or agree to sell, lease, license or otherwise dispose of, any interest in of any of the Facility/ Design Assets, except for sales of Inventory inventory in the ord- inary course and Equipment no longer required in the Operations;
(b) permit, allow or subject any of the Facility/ Design Assets or any part thereof to any material Lien, or suffer such to be imposed, except each case for Permitted Encumbrances;
(c) amend any Assumed Contracts in a manner that is not fair value in the ordinary course of business or that is material to the Operations, or terminate any Assumed Contracts, or enter into any Contracts which would be Assumed Contracts;
(d) announce or make any material modification to any of the Seller's Employees Plans applicable to any Transferred Employee, except as required by applicable Law or in the ordinary course of business;
(e) increase the base salary or wage rate payable to any Employee, except for increases required by a Collective Labour Agreement or otherwise required by Law, or made in the ordinary course of business and consistent with past practice;
(fiii) terminateamend, terminate or waive any right of material value relating to the Operations;
(iv) other than in the ordinary course of business, enter into, modify, amend or assume any contract, agreement, obligation, lease, license or commitment relating to the Operations which by its terms requires performance subsequent to the Closing Date or which involves an aggregate monetary commitment or exposure for causeall such contracts in excess of $50,000;
(v) incur any obligation or liability (fixed or contingent), greater than fifteen except normal trade or business obligations incurred in the ordinary course of business and consistent with past practice, which will not either individually or in the aggregate adversely affect the Operations;
(15vi) percent transfer or grant any rights under any concessions, leases, licenses, patents, inventions, trademarks, trade names, servicemarks or copyrights or with respect to any know-how, in each case included in the Assets;
(vii) prebill for unperformed services or unshipped goods or bill any amount disproxxxxionate to services performed or goods shipped; or
(viii) agree to commit to do any of the foregoing.
b. Except as otherwise permitted by this Agreement or with the prior written consent of the Buyer, prior to the Closing Date, the Sellers shall:
(i) conduct the Operations as presently operated and only in the ordinary course and consistent with past practice and use their best efforts to preserve intact each of their respective business organizations (including the retention of those key employees which Buyer identifies in writing as "Key Employees") and to preserve their relationships with and goodwill of their customers, suppliers and other persons having business dealings with them;
(ii) maintain in force all existing casualty and liability insurance policies and fidelity bonds relating to the Assets or the Operations, or greater than fifteen policies or bonds providing substantially the same coverage;
(15iii) percent of advise the Design Employees, provided, however, that Seller or Designated Seller shall inform Purchaser as soon as practicable prior to terminating, other that for cause, the employment Buyer in writing of any such Employee. During the period from the date of this Agreement until the final Closing Date effected pursuant to this Agreement, both the Seller and the Purchaser shall advise on a regular and frequent basis the designated representative(s) of the Purchaser or a Designated Purchaser or Seller or Designated Seller, as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters in relation to the portion of the Operations that remains to be transferred to Purchaser as of such date, material adverse change or any circumstance or event which event, to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or cause a material adverse effect on change in the Purchaser's condition (financial or otherwise), assets, liabilities or earnings of the Designated Purchaser's ability to perform its obligations pursuant to Sellers;
(iv) maintain all of the Amended Assets in good operating condition, reasonable wear and Restated Master Contract Manufacturing Services Agreement. Notwithstanding the foregoingtear excepted, the Seller shall be entitled to terminate any Open Purchase Orders and the purchase orders relating to contract workers, consistent with notice to the Purchaser. In addition, Seller shall consult with Purchaser to the extent reasonable practicable prior to any amendment of an Assumed Contractpast practice, and shall advise as soon as take all steps reasonably practicable following any execution necessary to maintain the intangible Assets; and
(v) maintain, consistent with past practice, all inventories, spare parts, office supplies and other expendable items included in the Assets;
(vi) bill customers only in xxxunts proportionate to services actually performed or goods actually shipped; and
(vii) pay creditors in accordance with normal practices and in the ordinary course of such amendmentbusiness.
Appears in 1 contract
Conduct of Operations. The During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing Date, Seller covenants thatagrees to use commercially reasonable efforts to carry on its operations in the usual, except regular and ordinary course in substantially the same manner as set forth conducted on the date hereof, to pay its debts and Taxes when due, to pay or perform other obligations when due, and, to the extent consistent with such business, use reasonable efforts consistent with the practice and policies in Schedule 5.2, from effect on the date hereof to the applicable Effective Time, except as the Purchaser may approve otherwise in writing (such approval not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreement, the Seller shall conduct the Operations or cause the Facility/ Design Operations, as conducted by the applicable Designated Seller, to be conducted in the ordinary course consistent with past practice preserve intact its operations and will make all commercially reasonable efforts consistent with past practice to maintain the Operations and Assets, and to preserve its relationship relationships with the Transferring Employeescustomers, suppliers, contractors distributors, licensors, licensees, and other service providers others having business dealings with whom the Seller or such Designated Seller deals in connection it, all with the Operations, goal of preserving unimpaired the Purchased Assets and so the Fat Grafting Operations at the Closing Date. Seller shall continue to support its existing customers with Fat Grafting Products through the Closing Date in substantially the same manner as such support was provided prior to ensure all representations and warranties the Closing Date. Seller shall promptly notify Buyer of the Seller remain true and correct in all material respects as of such Closing. Except as expressly contemplated any event or permitted by this Agreement occurrence or set forth in Schedule 5.2 (which Schedule may not be amended after the date hereof), from the date hereof until the applicable Effective Time, the Seller will not do, and will cause the applicable Designated Seller not to do, any of the following without the prior written consent of the Purchaser, not to be unreasonably withheld :
(a) sell, lease, license or otherwise dispose of, or agree to sell, lease, license or otherwise dispose of, any interest in any of the Facility/ Design Assets, except for sales of Inventory in the ord- inary course and Equipment no longer required in the Operations;
(b) permit, allow or subject any of the Facility/ Design Assets or any part thereof to any material Lien, or suffer such to be imposed, except for Permitted Encumbrances;
(c) amend any Assumed Contracts in a manner that is emergency not in the ordinary course of business or that is material to of the Fat Grafting Operations, or terminate and any Assumed Contractsevent which could have a material adverse effect on the Fat Grafting Operations. Except as expressly contemplated by this Agreement, or enter Seller shall not, without the prior written consent of Buyer:
(a) Enter into any Contracts commitment or transaction which would be Assumed Contracts;
(d) announce or make any material modification to any of the Seller's Employees Plans applicable to any Transferred Employee, except as required by applicable Law or is not in the ordinary course of business;
(b) Transfer to any Person any rights to any Intellectual Property;
(c) Amend or otherwise modify (or agree to do so) or violate the terms of the Transferred Agreements;
(d) Commence any litigation;
(e) increase the base salary Sell, lease, transfer, license or wage rate payable to otherwise dispose of any Employeeof its assets, including without limitation any inventory, except for increases required by a Collective Labour Agreement or otherwise required by Law, or made in the ordinary course of business consistent with past practice;business; or
(f) terminateTake, other than for causeor agree in writing or otherwise to take, greater than fifteen (15) percent any of the Key Employees, or greater than fifteen (15) percent of the Design Employees, provided, however, that Seller or Designated Seller shall inform Purchaser as soon as practicable prior to terminating, other that for cause, the employment of any such Employee. During the period from the date of this Agreement until the final Closing Date effected pursuant to this Agreement, both the Seller and the Purchaser shall advise on a regular and frequent basis the designated representative(s) of the Purchaser or a Designated Purchaser or Seller or Designated Seller, as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters in relation to the portion of the Operations that remains to be transferred to Purchaser as of such dateactions described above, or any circumstance other action that would prevent Seller from performing or event which to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or a material adverse effect on the Purchaser's or the Designated Purchaser's ability cause Seller not to perform its obligations pursuant to the Amended and Restated Master Contract Manufacturing Services Agreement. Notwithstanding the foregoing, the Seller shall be entitled to terminate any Open Purchase Orders and the purchase orders relating to contract workers, with notice to the Purchaser. In addition, Seller shall consult with Purchaser to the extent reasonable practicable prior to any amendment of an Assumed Contract, and shall advise as soon as reasonably practicable following any execution of such amendmentcovenants hereunder.
Appears in 1 contract
Conduct of Operations. The Seller covenants that, except as set forth in Schedule 5.2, from From the date hereof until the Closing, --------------------- except as otherwise permitted or contemplated by this Agreement (including without limitation any action described below to the applicable Effective Timeextent necessary or appropriate to consummate the transactions contemplated by Section 2.1 hereof) or as otherwise consented to by Purchaser in writing, except as the Purchaser may approve otherwise in writing (such approval consent not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreement, the Seller shall conduct the Operations or cause the Facility/ Design Operations, as conducted by Subsidiaries:
(a) To carry on the applicable Designated Seller, to be conducted business and operations of the Subsidiaries in the ordinary course consistent with past practice practices and will make all use commercially reasonable efforts consistent with past practice to maintain preserve intact their present organization, to keep available the Operations services of the present officers and Assets, employees and to preserve its relationship intact their relationships with the Transferring Employeescustomers, suppliers, contractors suppliers and other service providers others having material business dealings with whom the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure all representations and warranties each of the Seller remain true and correct in all material respects as of such Closing. Except as expressly contemplated or permitted by this Agreement or set forth in Schedule 5.2 (which Schedule may not be amended after the date hereof), from the date hereof until the applicable Effective Time, the Seller will not do, and will cause the applicable Designated Seller not to do, any of the following without the prior written consent of the Purchaser, not to be unreasonably withheld :
(a) sell, lease, license or otherwise dispose of, or agree to sell, lease, license or otherwise dispose of, any interest in any of the Facility/ Design Assets, except for sales of Inventory in the ord- inary course and Equipment no longer required in the Operationsthem;
(b) permitTo maintain their books of account and records in their usual, allow or subject any of the Facility/ Design Assets or any part thereof to any material Lienregular and ordinary manner, or suffer such to be imposed, except for Permitted Encumbrancesconsistent with their past practice;
(c) amend To promptly make available to Purchaser copies of all filings made by Seller with any Assumed Contracts federal, state or foreign Governmental Authority in a manner that is not in connection with this Agreement and the ordinary course of business or that is material to the Operations, or terminate any Assumed Contracts, or enter into any Contracts which would be Assumed Contractstransactions contemplated hereby;
(d) announce Not to settle or make compromise any material modification to Proceeding or threatened Proceeding involving any of them, their assets or any real property owned or leased by any of them if the Seller's Employees Plans applicable to any Transferred Employeeamount at issue exceeds $50,000.00, except as required by applicable Law for any Proceeding included among the Excluded Assets or in the ordinary course of businessExcluded Liabilities;
(e) increase the base salary Not to enter into any contract or wage rate payable agreement which involves total consideration to be paid or received by any Employee, except for increases required by a Collective Labour Agreement or otherwise required by Law, or made Subsidiary in excess of $50,000 other than in the ordinary course of business consistent with past practice;
(f) terminateNot to modify, amend or terminate any Material Contract in any material respect, waive, release, relinquish or assign any material right under any Material Contract or other material right or claim, or cancel or forgive any. indebtedness owed to any of them, other than, in each case, in the ordinary course of business consistent with past practice;
(g) Not to declare or pay dividends or make other shareholder distributions;
(h) Not to amend the articles of incorporation or by-laws or other charter documents (including any partnership agreement) of any Subsidiary;
(i) Not to increase the compensation payable or to become payable to any officer, director or employee of any Subsidiary, other than for cause, greater than fifteen in the ordinary course of business consistent with past practice or as required by law (and in no event in excess of 15) percent of the Key Employees, or greater than fifteen (15) percent of the Design Employees, provided, however, that Seller or Designated Seller shall inform Purchaser as soon as practicable prior to terminating, other that for cause, the employment of any such Employee. During the period from the date of this Agreement until the final Closing Date effected pursuant to this Agreement, both the Seller and the Purchaser shall advise on a regular and frequent basis the designated representative(s) of the Purchaser or a Designated Purchaser or Seller or Designated Seller, as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters in relation to the portion of the Operations that remains to be transferred to Purchaser as % of such date, individual's compensation);
(j) Not to incur or refinance any circumstance or event which indebtedness for borrowed money in excess of $50,000;
(k) Not to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or a material adverse effect on the Purchaser's or the Designated Purchaser's ability to perform its obligations pursuant to the Amended and Restated Master Contract Manufacturing Services Agreement. Notwithstanding the foregoing, the Seller shall be entitled to terminate make any Open Purchase Orders and the purchase orders relating to contract workers, with notice to the Purchaser. In addition, Seller shall consult with Purchaser to the extent reasonable practicable prior loans to any amendment Person other than in the ordinary course of an Assumed Contract, business (including loans and shall advise as soon as reasonably practicable following any execution of such amendment.advances to employees for business travel);
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Princess Beverly Coal Holding Co Inc)
Conduct of Operations. The Seller covenants that, except as set forth in Schedule 5.2, from the date hereof to the applicable Effective Time, except as the Purchaser may approve otherwise in writing (such approval not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreement, the Seller shall conduct the Operations or cause the Facility/ Design Operations, as conducted by the applicable Designated Seller, to be conducted in the ordinary course consistent with past practice and will make all commercially reasonable efforts consistent with past practice to maintain the Operations and Assets, and to preserve its relationship with the Transferring Employees, suppliers, contractors and other service providers with whom the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure all representations and warranties of the Seller remain true and correct in all material respects as of such Closing. Except as expressly contemplated or permitted by this Agreement or set forth in Schedule 5.2 (which Schedule may not be amended after the date hereof), from the date hereof until the applicable Effective Time, the Seller will not do, and will cause the applicable Designated Seller not to do, any of the following without the prior written consent of the Purchaser, not to be unreasonably withheld :
(a) sellAll decisions regarding the Mine, leaseincluding the Mining Properties and the Mineral Processing Facility, license including all decisions concerning the methods, extent, times, procedures and techniques of any: (i) exploration, operation, development, expansion, mining and closure activities related to the Mine, including spending on capital expenditures; (ii) leaching, milling, processing or otherwise dispose of, extraction methodologies for the Mine; (iii) materials to be introduced on or agree to sell, lease, license or otherwise dispose of, any interest in any of the Facility/ Design Assets, except for Mining Properties; and (iv) decisions regarding the sales of Inventory in the ord- inary course Minerals and Equipment no longer required in the Operations;
(b) permit, allow or subject any of the Facility/ Design Assets or any part terms thereof to any material Lien, or suffer such to shall be imposed, except for Permitted Encumbrances;
(c) amend any Assumed Contracts in a manner that is not in the ordinary course of business or that is material to the Operations, or terminate any Assumed Contracts, or enter into any Contracts which would be Assumed Contracts;
(d) announce or make any material modification to any of the Seller's Employees Plans applicable to any Transferred Employee, except as required made by applicable Law or in the ordinary course of business;
(e) increase the base salary or wage rate payable to any Employee, except for increases required by a Collective Labour Agreement or otherwise required by Law, or made in the ordinary course of business consistent with past practice;
(f) terminate, other than for cause, greater than fifteen (15) percent of the Key Employees, or greater than fifteen (15) percent of the Design Employees, provided, however, that Seller or Designated Seller shall inform Purchaser as soon as practicable prior to terminating, other that for cause, the employment of any such Employee. During the period from the date of this Agreement until the final Closing Date effected pursuant to this Agreement, both the Seller and PMPA Entities, in their sole discretion. Without limiting the Purchaser shall advise on a regular and frequent basis the designated representative(s) generality of the Purchaser or a Designated Purchaser or Seller or Designated Seller, as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters in relation to the portion of the Operations that remains to be transferred to Purchaser as of such date, or any circumstance or event which to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or a material adverse effect on the Purchaser's or the Designated Purchaser's ability to perform its obligations pursuant to the Amended and Restated Master Contract Manufacturing Services Agreement. Notwithstanding the foregoing, the Seller PMPA Entities shall be entitled permitted to terminate amend the mine plan for the Mine at any Open Purchase Orders time and from time to time in their sole discretion, provided that they are acting in a commercially prudent manner and consistent with generally accepted mining practice. For the purchase orders avoidance of doubt, notwithstanding any other provision of this Agreement or any other transaction document, nothing in this Agreement shall prevent the Seller PMPA Entities from placing on care and maintenance or from otherwise ceasing or suspending operation of the Mine at any time and from time to time when the Seller PMPA Entities determine that it is commercially reasonable or fiscally prudent to do so.
(b) Notwithstanding the discretion reserved by the Seller PMPA Entities under the first sentence of Section 6.1(a):
(i) Seller shall cause the development and operation of the Mine by the Seller PMPA Entities to be conducted in a commercially reasonable manner, in accordance with all Approvals;
(ii) neither Parent Company nor any Seller PMPA Entity shall consider the economic impact of this Agreement in its determination of Reserves or Resources for, or determine the life-of-mine strategic business plan or any other mine plan or scheduling for, the Mine, except that Parent Company or a Seller PMPA Entity may include such impact in its analysis solely in relation to any public disclosure concerning the Mine required under applicable securities laws or the rules of any securities exchange ("Securities Rules"), including if
(A) any professional person responsible for the preparation of such public disclosure is required by Securities Rules or by CIM Definition Standards (in each case, not in such person’s discretion) to include the economic impact of this Agreement in any economic analysis for the Mine, such impact may be included in such analysis; and
(B) as a result of a change in applicable Securities Rules or CIM Definition Standards occurring after the Agreement Date, any professional person responsible for the preparation of such public disclosure is required by Securities Rules (in each case, not in such person’s discretion) to include the economic impact of this Agreement in its determination of Reserves and Resources for the Mine, such impact may be included in such analysis.
(iii) The Seller PMPA Entities shall make all operating and capital decisions relating to contract workersthe Mine as though they had a 100% interest in the gold mined or otherwise extracted from the Mining Properties.
(c) Seller shall cause each Seller PMPA Entity to, at all times under this Agreement, use commercially reasonable efforts to maintain the Mine Assets (including all Approvals and, subject to Section 6.13 and 6.14, all Mining Properties) in good standing, including by paying all Taxes and other fees and making all filings due in respect thereof.
(d) Notwithstanding anything in this Agreement to the contrary, all development, mining operations and other activities in connection with notice the Mine shall, in all material respects, be conducted (i) in compliance with all Applicable Laws, including Environmental Laws (including standards relating to site rehabilitation and water), labor standards (including health and safety standards and laws prohibiting child labor, human trafficking, forced labor, and slavery), human rights (including the rights of children), payments to government officials, conflict minerals, and official and commercial corruption, and (ii) otherwise in a commercially reasonable manner consistent with generally accepted mining practice.
(e) The Seller PMPA Entities will, in all material respects, conduct their operations in accordance with the ESG Policies and Procedures, copies of which have been provided to the Purchaser. In addition, The Seller shall consult PMPA Entities may amend the ESG Policies and Procedures from time to time in accordance with Purchaser to generally accepted practices in the extent reasonable practicable prior to any amendment of an Assumed Contract, mining industry and shall advise as soon as reasonably practicable following any execution provide Purchaser with copies of such amendmentamended policies.
(f) For greater certainty, nothing in this Agreement shall require Seller, Parent Company or any of their Affiliates or any other person to operate or continue operating the Mine or to explore or develop all or any portion of the Mining Properties.
Appears in 1 contract
Samples: Precious Metals Purchase Agreement (Ero Copper Corp.)
Conduct of Operations. The Seller covenants that, except as set forth in Schedule 5.2, from the date hereof to the applicable Effective Time, except as the Purchaser may approve otherwise in writing (such approval not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreement, the Seller shall conduct the Operations or cause the Facility/ Design Operations, as conducted by the applicable Designated Seller, to be conducted in the ordinary course consistent with past practice and will make all commercially reasonable efforts consistent with past practice to maintain the Operations and Assets, and to preserve its relationship with the Transferring Employees, suppliers, contractors and other service providers with whom the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure all representations and warranties of the Seller remain true and correct in all material respects as of such Closing. Except as expressly contemplated or permitted by this Agreement or set forth in Schedule 5.2 (which Schedule may not be amended after the date hereof), from the date hereof until the applicable Effective Time, the Seller will not do, and will cause the applicable Designated Seller not to do, any of the following without the prior written consent of the Purchaser, not to be unreasonably withheld :
(a) sellSubject to subsection 11(b) below, leaseall decisions concerning methods, license the extent, times, procedures and techniques of any (i) exploration, development and mining related to the Property, (ii) milling, processing or otherwise dispose ofextraction treatment and (iii) materials to be introduced on or to the Property or produced therefrom, shall be made by the Owner in its sole and absolute discretion, and all decisions concerning the sale or agree to sellother disposition of Products from the Property, lease, license or otherwise dispose of, any interest in any of shall be made by the Facility/ Design Assets, except for sales of Inventory in the ord- inary course and Equipment no longer required in the Operations;Owner acting with commercial reasonableness.
(b) permit, allow The Owner shall not be required to explore for or subject mine Products but shall process any Products that it mines from the Property as expeditiously as commercially reasonably possible provided that this obligation shall not restrict Owner from timing sales of Product with a view to taking advantage of seasonal increases in the sale price of Product. No Production Royalty shall be due on and the Owner shall not be responsible for or obliged to make any Production Royalty payments for Products or mineral value lost in any mining or processing of the Facility/ Design Assets Products conducted in accordance with accepted mining or any part thereof to any material Lien, or suffer such to be imposed, except for Permitted Encumbrances;processing practices.
(c) amend any Assumed Contracts in a manner that is not in Following the ordinary course release from escrow of business or that is material all Common Shares subject to the Operations, or terminate any Assumed Contracts, or enter into any Contracts which would be Assumed Contracts;
(d) announce or make any material modification to any of the Seller's Employees Plans applicable to any Transferred Employee, except as required by applicable Law or in the ordinary course of business;
(e) increase the base salary or wage rate payable to any Employee, except for increases required by a Collective Labour Agreement or otherwise required by Law, or made in the ordinary course of business consistent with past practice;
(f) terminate, other than for cause, greater than fifteen (15) percent of the Key Employees, or greater than fifteen (15) percent of the Design Employees, provided, however, that Seller or Designated Seller shall inform Purchaser as soon as practicable prior to terminating, other that for causeEscrow Agreement, the employment of any such Employee. During the period from the date of this Agreement until the final Closing Date effected pursuant to this Agreement, both the Seller and the Purchaser shall advise on a regular and frequent basis the designated representative(s) of the Purchaser or a Designated Purchaser or Seller or Designated Seller, as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters in relation to the portion of the Operations that remains to be transferred to Purchaser as of such date, or any circumstance or event which to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or a material adverse effect on the Purchaser's or the Designated Purchaser's ability to perform its obligations pursuant to the Amended and Restated Master Contract Manufacturing Services Agreement. Notwithstanding the foregoing, the Seller Owner shall be entitled to terminate abandon the Property (or any Open Purchase Orders and part thereof, the purchase orders relating to contract workers“Dropped Property”), with provided that it shall give 90 days’ prior written notice to the Purchaser. In additionHolder of its intention to do so, Seller and, at the option of the Holder, the Owner shall consult with Purchaser transfer the Dropped Property and all related Technical Information to the extent reasonable practicable prior Holder or its assignee for no consideration. Upon subsequent escheat, forfeiture or conveyance back to the entity that is entitled to the Property (or any amendment part thereof) upon such abandonment, this Agreement shall be null and void and of an Assumed Contractno further force or effect with respect to the Property (or any part thereof) that have been abandoned, but further provided that if the Owner or any Affiliate of the Owner re-stakes the land subject to the Property or otherwise acquires the lands subject to the Property at any time after such escheat, forfeiture or conveyance, this Production Royalty Agreement and the Production Royalty shall again be of force and effect and shall advise as soon as reasonably practicable following apply to such re-staked lands and any execution Products derived therefrom. For greater certainty, this Agreement shall remain in force and effect with respect to that portion of such amendmentthe Property that have not been abandoned pursuant to this Section 11(c).
Appears in 1 contract
Conduct of Operations. The Seller covenants thatFrom the Execution Date until Closing, except Sellers will, consistent with their duties and obligations as set forth in Schedule 5.2, from the date hereof a debtors-in-possession and subject to the applicable Effective Time, except as the Purchaser may approve otherwise in writing (such approval not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreement, the Seller shall conduct the Operations or cause the Facility/ Design Operations, as conducted by the applicable Designated Seller, to be conducted in the ordinary course consistent with past practice and will make all commercially reasonable efforts consistent with past practice to maintain the Operations and Assets, and to preserve its relationship with the Transferring Employees, suppliers, contractors and other service providers with whom the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure all representations and warranties requirements of the Seller remain true Bankruptcy Code and correct in all material respects as of such Closing. Except as expressly contemplated or permitted by this Agreement or set forth in Schedule 5.2 (which Schedule may not be amended after the date hereof), from the date hereof until the applicable Effective Time, the Seller will not do, and will cause the applicable Designated Seller not to do, any orders of the following without the prior written consent of the PurchaserBankruptcy Court, not to be unreasonably withheld :
(a) sell, lease, license or otherwise dispose of, or agree to sell, lease, license or otherwise dispose of, any interest in any continue the routine operation of the Facility/ Design Assets, except for sales of Inventory in the ord- inary course and Equipment no longer required in the Operations;
(b) permit, allow or subject any of the Facility/ Design Assets or any part thereof to any material Lien, or suffer such to be imposed, except for Permitted Encumbrances;
(c) amend any Assumed Contracts in a manner that is not Properties in the ordinary course of business or that is material to and as would a reasonable prudent operator in accordance with good oilfield practice; (b) operate the OperationsProperties in compliance with all Permits, or terminate any Assumed Contractsapplicable Laws and Environmental Laws and in compliance with all of the Basic Documents; (c) fulfill all obligations under the Basic Documents and, or enter into any Contracts which would be Assumed Contracts;
in all respects, under such applicable Laws and Environmental Laws; and (d) announce or make any material modification to any maintain all equipment used in connection with the Properties in at least as good of a condition as it is as of the Seller's Employees Plans applicable Execution Date, subject to ordinary wear and tear. Between the Execution Date and the Closing Date, Sellers will, consistent with their duties and obligations as a debtors-in-possession and subject to the requirements of the Bankruptcy Code and any Transferred Employee, except as required by applicable Law or orders of the Bankruptcy Court: (i) conduct their business relating to the Properties only in the ordinary course of business;
; (eii) increase the base salary or wage rate payable use their Commercially Reasonable Efforts to any Employee, except for increases required by a Collective Labour Agreement or otherwise required by Lawpreserve, or made cause to be preserved, in full force and effect, all Leases, operating agreements, easements, rights-of-way, Permits, approvals, bonds, guaranties, licenses and other agreements that relate to the ordinary course of business consistent with past practice;
Properties; (fiii) terminate, other than for cause, greater than fifteen (15) percent of the Key Employeesmake, or greater than fifteen cause to be made, all filings required under applicable Law with respect to the Properties; (15iv) percent of the Design Employeesmaintain, provided, however, that Seller or Designated Seller shall inform Purchaser as soon as practicable prior to terminating, other that for causehave maintained on its behalf, the employment same insurance coverage for the benefit of any such Employee. During the period from the date of this Agreement until the final Closing Date effected pursuant to this Agreement, both the Seller Sellers and the Purchaser shall advise on a regular and frequent basis the designated representative(s) of the Purchaser or a Designated Purchaser or Seller or Designated Seller, Properties as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters is in relation to the portion of the Operations that remains to be transferred to Purchaser as of such date, or any circumstance or event which to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or a material adverse effect on the Purchaser's date hereof; (v) not mortgage, pledge, encumber, create or allow any consensual Liens not existing on the Designated Purchaser's ability to perform its obligations pursuant date hereof upon any Properties; (vii) keep Buyer reasonably informed regarding current and proposed activities relating to the Amended Properties; and Restated Master Contract Manufacturing Services Agreement. Notwithstanding (viii) not take any action that would cause its representations or warranties hereunder to be materially incorrect as of the foregoing, the Seller shall be entitled to terminate any Open Purchase Orders and the purchase orders relating to contract workers, with notice to the Purchaser. In addition, Seller shall consult with Purchaser to the extent reasonable practicable prior to any amendment of an Assumed Contract, and shall advise as soon as reasonably practicable following any execution of such amendmentClosing Date.
Appears in 1 contract
Conduct of Operations. The Seller covenants that, except as set forth in Schedule 5.2, from the date hereof to the applicable Effective Time, except as the Purchaser may approve otherwise in writing (such approval not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreement, the Seller shall conduct the Operations or cause the Facility/ Design Operations, as conducted by the applicable Designated Seller, to be conducted in the ordinary course consistent with past practice and will make all commercially reasonable efforts consistent with past practice to maintain the Operations and Assets, and to preserve its relationship with the Transferring Employees, suppliers, contractors and other service providers with whom the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure all representations and warranties of the Seller remain true and correct in all material respects as of such Closing. Except as expressly contemplated or permitted by this Agreement or set forth in Schedule 5.2 (which Schedule may not be amended after the date hereof), from From the date hereof until the applicable Effective TimeClosing, the Seller will not do, and will endeavor to cause the applicable Designated Seller not each Operator to do, any of the following without the prior written consent of the Purchaser, not to be unreasonably withheld :
(a) sell, lease, license or otherwise dispose of, or agree to sell, lease, license or otherwise dispose of, any interest in any continue the routine operation of the Facility/ Design Assets, except for sales of Inventory in the ord- inary course and Equipment no longer required in the Operations;
(b) permit, allow or subject any of the Facility/ Design Assets or any part thereof to any material Lien, or suffer such to be imposed, except for Permitted Encumbrances;
(c) amend any Assumed Contracts in a manner that is not Properties in the ordinary course of business or that is and as would a prudent operator; (b) operate the Properties in material compliance with all Applicable Laws and Environmental Laws and in material compliance with all Basic Documents; and (c) fulfill all material obligations under the Basic Documents and, in all material respects, under such Applicable Laws and Environmental Laws.
(a) In the event Cheyenne Petroleum, Inc. makes a Proposal after the date of the execution of this Agreement by Buyer and Seller but prior to the OperationsClosing Date, and Buyer does not wish to participate in said operation, Seller may elect to participate in said operation. Upon Closing, Seller shall assign the affected property to Buyer but shall reserve the wellbore in which said operation took place. Buyer shall notify Seller of its election not to participate in an operation in writing within five (5) days of receiving notice of a Proposal from Seller.
(b) Seller shall not expend any funds, or terminate make any Assumed Contractscommitments to expend funds (including entering into new agreements which would obligate Seller to expend funds), or otherwise incur any other obligations or liabilities, with respect to the Properties (i) except in the event of an emergency requiring immediate action to protect life or preserve the Properties and (ii) other than to pay expenses or to incur liabilities in connection with routine operation of the Properties. As used in the immediately foregoing sentence, “routine operation” shall not include voting on operations proposed by Operator or a non-operator pursuant to a joint operating agreement or otherwise, including but not limited to (x) proposals of new Xxxxx, (y) reworking or recompletion of Xxxxx and (z) elections made pursuant to the area of mutual interest provision thereof, after the Effective Date (“Proposals”). Seller shall promptly notify Buyer in writing of each Proposal and shall act as Buyer may direct with respect thereto. Except as may be set forth in Section 6.3(a) of the Seller’s Disclosure Schedule, Seller warrants and represents that, as of the date of this Agreement, it has consented to all Proposals made on or after the Effective Date;
(c) Seller shall not except where necessary to prevent the termination of a Lease or other material agreement governing Seller’s interest in the Properties and except with respect to the Excluded Assets, propose the drilling of any additional xxxxx, or propose the deepening, plugging back or reworking of any existing Xxxxx, or propose the conducting of any other operations which require consent under the applicable joint operating agreement, or propose the conduct of any other operations other than the normal operation of the existing Xxxxx on the Oil and Gas Properties, or propose the abandonment of any xxxxx on the Oil and Gas Properties (and Seller agrees that it will promptly advise Buyer of any such proposals made by third-parties and will respond as Buyer may direct to each such proposal made by a third-party in a timely and appropriate manner). The written notifications to be made by Seller pursuant to Section 6.3(a) and this Section 6.3(c) shall be accompanied by such information as may be received by, or in the possession or control of Seller with respect to the subject matter thereof. Seller shall promptly supply such further information in Seller’s possession or control as may reasonably be requested by Buyer with respect thereto; or
(d) Seller shall not release (or permit to terminate), or modify or reduce its rights under, any Lease forming a part of the Oil and Gas Properties, or any other Basic Document, or enter into any Contracts new agreements which would be Assumed Contracts;
(d) announce or make any material modification to any of the Seller's Employees Plans applicable to any Transferred Employee, except as required by applicable Law or in the ordinary course of business;
(e) increase the base salary or wage rate payable to any Employee, except for increases required by a Collective Labour Agreement or otherwise required by LawBasic Documents, or made in the ordinary course of business consistent with past practice;
(f) terminate, other than for cause, greater than fifteen (15) percent of the Key Employees, modify any existing production sales contracts or greater than fifteen (15) percent of the Design Employees, provided, however, that Seller or Designated Seller shall inform Purchaser as soon as practicable prior to terminating, other that for cause, the employment of enter into any such Employee. During the period from the date of this Agreement until the final Closing Date effected pursuant to this Agreement, both the Seller and the Purchaser shall advise on a regular and frequent basis the designated representative(s) of the Purchaser or a Designated Purchaser or Seller or Designated Seller, as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters in relation to the portion of the Operations that remains to be transferred to Purchaser as of such date, or any circumstance or event which to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or a material adverse effect on the Purchaser's or the Designated Purchaser's ability to perform its obligations pursuant to the Amended and Restated Master Contract Manufacturing Services Agreement. Notwithstanding the foregoing, the Seller shall be entitled to terminate any Open Purchase Orders and the purchase orders relating to contract workers, with notice to the Purchaser. In addition, Seller shall consult with Purchaser to the extent reasonable practicable prior to any amendment of an Assumed Contract, and shall advise as soon as reasonably practicable following any execution of such amendmentnew production sales contracts.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Reef Oil & Gas Drilling & Income Fund, L.P.)
Conduct of Operations. The (a) Seller covenants that, except as set forth in Schedule 5.2, from will not without the date hereof to the applicable Effective Time, except as the Purchaser may approve otherwise prior consent in writing of Buyer, (such approval which will not to be unreasonably withheld or delayed) or as otherwise expressly contemplated by this Agreement or the applicable Local Sales Agreement, the Seller shall :
(i) conduct the Operations or cause the Facility/ Design Operations, as conducted by the applicable Designated Seller, to be conducted except in the ordinary course consistent with past practice and will make all commercially reasonable efforts consistent with past practice to maintain the Operations and Assets, and to preserve its relationship with the Transferring Employees, suppliers, contractors and other service providers with whom the Seller or such Designated Seller deals in connection with the Operations, and so as to ensure all representations and warranties of the Seller remain true and correct in all material respects as of such Closing. Except as expressly contemplated or permitted by this Agreement or set forth in Schedule 5.2 (which Schedule may not be amended after the date hereof), from the date hereof until the applicable Effective Time, the Seller will not do, and will cause the applicable Designated Seller not to do, any of the following without the prior written consent of the Purchaser, not to be unreasonably withheld :
(a) sell, lease, license or otherwise dispose of, or agree to sell, lease, license or otherwise dispose of, any interest in any of the Facility/ Design Assets, except for sales of Inventory in the ord- inary course and Equipment no longer required in the Operationspractices;
(bii) permit, allow or subject any of the Facility/ Design Assets or any part thereof to any material Lien, or suffer such to be imposed, except for Permitted Encumbrances;
(c) amend any Assumed Contracts in a manner that is not in the ordinary course of business or that is material to the Operations, or terminate any Assumed Contracts, or enter into any Contracts which would be Assumed Contracts;
(d) announce or make any material modification to any of the Seller's Employees Plans applicable to any Transferred Employee, except as required by applicable Law its terms, amend, terminate, renew (other than on substantially equivalent terms) or renegotiate any lease for the Facility or the equipment lease finance facility provided to Seller by Silicon Valley Bank, or default (or take or omit to take any action that with or without the giving of notice or passage of time or both, would constitute a default) in any of its obligations or waive any material default by another party under any of the foregoing;
(iii) enter into any material contract or commitment, or incur or agree to incur any material liability which, in either case, is or will be an Assumed Liability, except for those which are terminable without cause or penalty within ninety (90) days following Closing;
(iv) by action or inaction, abandon, terminate, cancel, forfeit, waive or release Seller's material rights, in whole or in part, with respect to the Purchased Assets, or sell or dispose of the Purchased Assets, or encumber any of the Purchased Assets; except (i) Encumbrances pursuant to the Security Agreement, (ii) dispositions of property not material in amount, or (iii) sales of Inventory and replacement of obsolete or worn out property in the ordinary course of business;
(ev) increase the base salary or wage rate payable to any Employeehold, except for increases required by a Collective Labour Agreement store or otherwise required by Law, or made retain Inventory except as would be customary practice in the ordinary course of business consistent Operations or in connection with past practiceincreased Inventory requirements relating to commercial launch of the Product, or as Licensee has expressly agreed to purchase pursuant to Section 2.2(a)(iv);
(fvi) fail to conduct the Operations in accordance with applicable regulatory requirements, including the maintenance of standards of facility, materials, quality, control, production and safety testing in compliance with GMP and other regulatory requirements, and in compliance with all approvals, licenses, permissions and permits necessary for the conduct of the Operations;
(vii) settle any dispute or threatened dispute with any Governmental Entity regarding the Purchased Assets in a manner that materially and adversely affects Buyer (it being understood that the maintenance of record retention programs with respect to the Purchased Assets shall be deemed not to materially and adversely affect Buyer);
(viii) terminate or permit the cancellation or lapse of insurance coverage on the Purchased Assets or related to the Operations;
(ix) terminate, other than amend or fail to renew or preserve any Permits necessary for cause, greater than fifteen (15) percent the conduct of the Key EmployeesOperations;
(x) so long as the costs therefor are included in the Cost of Goods Sold or Seller has access to borrowing under the Line of Credit, fail to maintain or greater than fifteen cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, the Purchased Assets, adequate spare parts (15) percent including, without limitation, injection molds and other items of equipment used in the manufacture of the Design EmployeesProduct) and any other properties material to and useful in the Operations (including, provided, however, that Seller or Designated Seller shall inform Purchaser as soon as practicable prior to terminating, other that for causewithout limitation, the employment of Facility), nor fail to make all appropriate repairs, renewals and replacements thereof; or
(xi) fail to comply with all applicable Environmental Laws and obtain and comply in all material respects with and maintain any such Employee. During the period from the date of this Agreement until the final Closing Date effected pursuant to this Agreementand all licenses, both the Seller and the Purchaser shall advise on a regular and frequent basis the designated representative(s) of the Purchaser approvals, notifications, registrations or a Designated Purchaser or Seller or Designated Sellerpermits required by applicable Environmental Laws, as the case may be, on the general status of ongoing operations and any Employee terminations and labour relations matters in relation except to the portion of the Operations extent that remains failure to do so could not be transferred reasonably expected to Purchaser as of such date, or any circumstance or event which to the Knowledge of the applicable Primary Party constitutes either a Material Adverse Effect on the Operations or the Assets, or have a material adverse effect on the Purchaser's Purchased Assets or the Designated Purchaser's ability to perform its obligations pursuant to conduct of the Amended and Restated Master Contract Manufacturing Services Agreement. Notwithstanding the foregoing, the Seller shall be entitled to terminate any Open Purchase Orders and the purchase orders relating to contract workers, with notice to the Purchaser. In addition, Seller shall consult with Purchaser to the extent reasonable practicable prior to any amendment of an Assumed Contract, and shall advise as soon as reasonably practicable following any execution of such amendment.Operations;
Appears in 1 contract
Samples: Asset Purchase Option Agreement (Cypress Bioscience Inc)
