Conduct of the Business of the Company Prior to the Closing. During the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Closing (the “Interim Period”), except (i) as required or expressly permitted by this Agreement (including actions taken in substantial conformity with the Reorganization Plans), (ii) as required by Applicable Law (including Applicable Law imposing any quarantine, “shelter in place”, “stay at home”, workforce reduction, social distancing, shut down, closure or sequester in connection with or in response to COVID-19), (iii) as set forth in Schedule 5.1 of the Seller Disclosure Letter, or (iv) as consented to in writing by Parent (including by email in accordance with Section 10.2), which consent shall not be unreasonably withheld, conditioned or delayed, the Company shall and shall cause each of its Subsidiaries to and the Sellers shall cause the Company and each of its Subsidiaries to: (a) conduct (i) the Business in the Ordinary Course in all material respects (except with respect to the Reorganizations); and (ii) each Reorganization in substantial conformity with its respective Reorganization Plan; (b) not act in bad faith, or otherwise intentionally take material actions, that are substantially inconsistent with the long term value of the Company for the specific purpose of achieving any Contingent Consideration; (c) make capital expenditures in all material respects in the Ordinary Course, and not make any other capital expenditures in excess of 7% of Revenue during the applicable year; (d) conduct annual reviews of employees of the Business in the Ordinary Course in all material respects; (i) pay and perform its debts and other obligations when due in the Ordinary Course (except those being contested in good faith), (ii) use commercially reasonable efforts consistent with the Ordinary Course and policies to invoice, collect and apply accounts receivable when due and not pre-pay, advance pay or extend any payables or credit outside of the Ordinary Course, (iii) sell the Company Products consistent with the Ordinary Course as to payment terms, discounting, license, service and maintenance terms, incentive programs, revenue recognition, deferral of revenue and other material terms, and (iv) except for any Reorganization in substantial conformity with its respective Reorganization Plan, use its commercially reasonable efforts consistent with the Ordinary Course to preserve intact its present business organizations, keep available the services of its present officers and key employees and preserve its relationships with its customers, suppliers, distributors, licensors, licensees, and others having material business dealings with it; (f) contribute capital to the Persons listed on Exhibit P to maintain its ownership percentage as of the Agreement Date solely to the extent it has the opportunity to participate in any equity or convertible equity fundraising, and except as otherwise approved by the Sellers and Parent; and (g) where lawful to do so, keep Parent reasonably informed regarding the status of, and any communications with a Governmental Entity regarding, any inquiries, claims, assessments, audits, examinations, disputes or similar events with respect to Taxes of the Company or any of its Subsidiaries greater than $5,000,000 with respect to any such matters by any one Tax Authority.
Appears in 3 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement, Share Purchase Agreement (Nvidia Corp)
Conduct of the Business of the Company Prior to the Closing. During (a) From the period from the date of this Agreement Date and continuing until the earlier of the Closing or the termination of this Agreement and the Closing (the “Interim Period”)pursuant to Article VII, except (i) as required or otherwise expressly permitted by provided in this Agreement (including actions taken in substantial conformity with or the Reorganization Plans)Real Estate Purchase Agreement, (ii) as required by Applicable Law (including Applicable Law imposing any quarantineLaw, “shelter in place”, “stay at home”, workforce reduction, social distancing, shut down, closure or sequester in connection with or in response to COVID-19), (iii) as specifically set forth in Schedule 5.1 Section 6.01 of the Seller Disclosure Letter, Letter or (iv) as consented to in writing by Parent the Buyers (including by email in accordance with Section 10.2), which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall and shall cause each of its Subsidiaries to shall, and the Sellers Seller shall cause the Company and each of its Subsidiaries the Company Subsidiaries, to:
(a) conduct : (i) conduct the Business in the Ordinary Course in all material respects (except with respect to the Reorganizations); and (ii) each Reorganization in substantial conformity with its respective Reorganization Plan;
(b) not act in bad faith, or otherwise intentionally take material actions, that are substantially inconsistent with the long term value business of the Company for and the specific purpose of achieving any Contingent Consideration;
(c) make capital expenditures in all material respects Company Subsidiaries in the Ordinary Course, and not make any other capital expenditures in excess of 7% of Revenue during the applicable year;
(d) conduct annual reviews of employees of the Business in the Ordinary Course ordinary course in all material respects;
(i) pay and perform its debts and other obligations when due in the Ordinary Course (except those being contested in good faith), (ii) use commercially reasonable efforts consistent with to maintain and preserve intact their business organizations, properties and other assets, advantageous business relationships, the Ordinary Course and policies to invoice, collect and apply accounts receivable when due and not pre-pay, advance pay or extend any payables or credit outside effectiveness of the Ordinary Course, Permits set forth on Section 3.13 of the Seller Disclosure Letter and to keep available the services of their key employees and (iii) sell the Company Products consistent with the Ordinary Course as to payment terms, discounting, license, service and maintenance terms, incentive programs, revenue recognition, deferral of revenue and other material terms, and (iv) except for any Reorganization in substantial conformity with its respective Reorganization Plan, use its commercially reasonable efforts consistent to maintain the casino license under which the business of the Company and the Company Subsidiaries currently operates in good standing and to comply with applicable Gaming Law and the Ordinary Course obligations of the Company or any Company Subsidiary under the Development Agreement. Notwithstanding the foregoing provisions of this Section 6.01(a), (i) the Seller will not be required to preserve intact take any action prohibited by Section 6.01(b) in order to satisfy the Company’s or the Seller’s obligations under this Section 6.01(a) and (ii) neither the Company nor the Seller shall be deemed to have failed to satisfy its present business organizationsobligations under this Section 6.01(a) to the extent such failure resulted, keep available directly or indirectly, from the services Company’s or the Seller’s failure to take any action prohibited by Section 6.01(b).
(b) Without limiting the generality of its present officers and key employees and preserve its relationships Section 6.01(a), from the date of this Agreement until the earlier of the Closing or the termination of this Agreement pursuant to Article VII, except as otherwise expressly provided in this Agreement, required by Law, as specifically set forth in Section 6.01 of the Seller Disclosure Letter or as consented to in writing by the Buyers (provided, that the Buyers agree to promptly respond to any request for consent under this Section 6.01(b) (which consent, other than as set forth in the Real Estate Purchase Agreement with its customersrespect to PropCo Buyer, suppliersshall not be unreasonably withheld, distributorsconditioned or delayed)), licensorsthe Seller, licenseesin respect of the Company or any Company Subsidiary, shall not, and others having material business dealings with itshall cause the Company and each Company Subsidiary not to:
(i) amend or otherwise change the certificate of formation, operating agreement or equivalent organizational documents of the Company or any Company Subsidiary;
(fii) contribute capital issue, sell, pledge, transfer, assign, license, abandon, dispose of or otherwise subject to the Persons listed on Exhibit P to maintain its ownership percentage as any Encumbrance (x) any membership interest or other equity interest of the Agreement Date solely Company or any Company Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any such membership interests or any other equity or ownership interest or equity-equivalent interest in the Company or any Company Subsidiary; or (y) any material properties or assets of the Company or any Company Subsidiary, other than, in the case of tangible personal property, sales or transfers of inventory in the ordinary course of business consistent with past practice or sales, transfers or disposals of inventory or equipment that is being retired or replaced in the ordinary course of business consistent with past practice, or transfers, assignments, licenses, abandonments or other disposals of Intellectual Property in the ordinary course of business consistent with past practice;
(iii) declare, set aside, make or pay any dividend or other distribution (whether in cash, securities, or other property) on or with respect to any membership interests or other equity or ownership interest of the Company or any Company Subsidiary, except to the extent it has such cash dividend or distribution (x) would not result in the opportunity Company and the Company Subsidiaries having less than the minimum Cage Cash balance required under applicable Gaming Laws and (y) would not be reasonably likely to participate in adversely impact any equity or convertible equity fundraising, and except as otherwise approved by applicable Gaming Authority’s determination of the Sellers and Parent; and
(g) where lawful to do so, keep Parent reasonably informed regarding the status of, and any communications with a Governmental Entity regarding, any inquiries, claims, assessments, audits, examinations, disputes or similar events with respect to Taxes suitability of the Company or any of its Subsidiaries greater or Affiliates for any license, permit, findings of suitability or other authorization;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of membership interests or other equity or ownership interest, or make any other change with respect to the equity structure of the Company or any Company Subsidiary;
(v) acquire any corporation, partnership, limited liability company, other business organization or division thereof or any material amount of assets (but excluding any (1) equipment or inventory acquired in the ordinary course of business or (2) real property which such acquisition of real property shall be subject to the Real Estate Purchase Agreement), or enter into any joint venture, strategic alliance, exclusive dealing or noncompetition contract or arrangement;
(vi) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary, or otherwise alter the Company’s or any Company Subsidiary’s equity structure;
(vii) incur any Indebtedness or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, except (x) in the ordinary course of business consistent with past practice and (y) that will be repaid at or before the Closing;
(viii) accelerate, amend in any material respect, waive, modify in any material respect or consent to the termination of any Material Contract, or accelerate, amend in any material respect, waive, modify in any material respect or consent to the termination of the Company’s or any Company Subsidiary’s rights thereunder;
(ix) enter into any Contract that if in effect on the date hereof would be a Material Contract except any Contract described in clause (i), (vi) or (vii) of Section 3.08 (and no other clause thereof) in the ordinary course of business consistent with past practice;
(x) authorize, or make any commitment with respect to, any single capital expenditure that is in excess of $1,000,000 or capital expenditures that are, in the aggregate, in excess of $5,000,000 for the Company and the Company Subsidiaries taken as a whole;
(xi) enter into any lease, sublease or license of real property or any renewal, modification, amendment or termination of any of the foregoing (any of the foregoing, an “Occupancy Agreement”), other than (x) any renewal of a Tenant Lease exercised by the Tenant in accordance with the terms of such Tenant Lease and (y) entry into any lease, sublease or license of real property that (1) is an arm’s-length agreement on market terms, (2) is for a term not to exceed six months and that in any event terminates by its terms prior to the Closing Date and (3) pursuant to which the applicable tenant, subtenant or licensee is required to vacate its premises before the Closing Date;
(xii) (A) increase the compensation payable to or to become payable to, or the benefits provided to, its directors, officers or employees or other consultants, except for (x) wage increases required by the terms of any Benefit Plan or collective bargaining agreement as in existence on the date hereof and listed in Section 3.15(a) or 3.16(a) of the Seller Disclosure Letter and (y) normal merit and cost-of-living increases, in the ordinary course of business and consistent with past practice, in salaries or wages of employees or compensation of consultants of the Company or a Company Subsidiary who are not directors or officers of the Company or a Company Subsidiary and who receive less than $5,000,000 200,000 in annual base salary or consulting fees from the Company or any Company Subsidiary; (B) promise, grant or modify any severance, retention, change in control, termination or similar payment or benefit to, or loan or advance or accelerate any amount to, any director, officer or employee or consultant of the Company or any Company Subsidiary, other than any such non-loan amounts that are (1) payable to employees of the Company or Company Subsidiaries with an annual base salary of less than $100,000, (2) to the extent not paid prior to the MI Closing, treated as Current Liabilities as of the MI Closing, and (3) in the aggregate, less than 3% of the applicable employee’s annual base salary in effect as of the date of this Agreement, excluding, for purposes of this subclause (3), any severance provided pursuant to the terms of the Greektown Casino Severance Plan (executed on October 10, 2018); (C) accelerate the vesting, funding or payment of any compensation or benefit for any director, officer, employee or consultant of the Company or any Company Subsidiary; (D) establish, adopt, enter into, terminate or amend any collective bargaining agreement (or similar agreement with a labor organization) or any Benefit Plan (or any arrangement that would be a Benefit Plan if it were in effect as of the date of this Agreement), except for welfare plan renewals in the ordinary course of business consistent with past practice that do not result in material increased expense to the Company or any Company Subsidiary, or as required by any Law as in effect on the date hereof; (E) hire or otherwise retain the services of any new director, or executive officer of the Company or a Company Subsidiary; or (F) except as permitted by Section 6.03(c), adopt, enter into, grant, establish, renew, or set performance targets with respect to, any incentive compensation or program for incentive compensation;
(xiii) make or enter into any Contract for the employment of any employee (other than an at will employee in the ordinary course of business and consistent with past practice who earns annual compensation, in the aggregate, of no more than $200,000 and is not a director or officer of the Company or any Company Subsidiary) or terminate any employee other than a termination for cause without severance (other than an employee who is not an officer of the Company and who receives annual compensation, in the aggregate, of no more than $200,000);
(xiv) enter into or amend any Related Party Contract, except for any Related Party Contract that will be terminated at or before the Closing without any further liability or obligation (contingent or otherwise) of the Company, any Company Subsidiary or any other party thereunder;
(xv) make any change in any method of accounting or accounting practice or policy (including for Tax accounting purposes), except as required by GAAP or applicable Law;
(xvi) waive, release, assign, settle or compromise any Action if such waiver, release, assignment, settlement or compromise (A) with respect to the payment of monetary damages, involves the payment by the Company or Company Subsidiary of an amount in excess of $250,000 in any individual matter or (B) with respect to any nonmonetary terms and conditions therein, imposes or requires actions that would or would, individually or in the aggregate, reasonably be expected to materially restrict or limit the operations of the business of the Company and the Company Subsidiaries as conducted on the date hereof;
(xvii) fail to maintain, with financially responsible insurance companies, insurance in such matters amounts and against such risks and losses as is maintained by it at present;
(xviii) enter into any new line of business;
(xix) make, change or revoke any material Tax election, settle or compromise any Tax claim or Liability or claim for a refund of Taxes, incur any material Tax Liability outside of the ordinary course of business, change (or request any taxing authority to change) any aspect of its method of accounting for Tax purposes, change its annual Tax accounting period, enter into any closing agreement or other binding written agreement relating to Taxes with any taxing authority or any Tax sharing agreement, file any amended Tax Return, surrender any claim for a refund of Taxes, file any Tax Return other than one prepared in a manner consistent with past practices, or consent to any extension or waiver of the limitation period applicable to any Tax Authorityclaim or assessment (other than pursuant to an extension of time to file any Tax Return obtained in the ordinary course of business); or
(xx) agree, commit or resolve to take any of the actions prohibited by this Section 6.01(b).
Appears in 1 contract
Conduct of the Business of the Company Prior to the Closing. During (a) From the period from the date of this Agreement Date and continuing until the earlier of the Closing or the termination of this Agreement and the Closing (the “Interim Period”)pursuant to Article VII, except (i) as required or otherwise expressly permitted by provided in this Agreement (including actions taken in substantial conformity with or the Reorganization Plans)Equity Purchase Agreement, (ii) as required by Applicable Law (including Applicable Law imposing any quarantineLaw, “shelter in place”, “stay at home”, workforce reduction, social distancing, shut down, closure or sequester in connection with or in response to COVID-19), (iii) as specifically set forth in Schedule 5.1 Section 6.01 of the Seller Disclosure Letter, Letter or (iv) as consented to in writing by Parent the Buyers (including by email in accordance with Section 10.2), which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall and shall cause each of its Subsidiaries to shall, and the Sellers Seller shall cause the Company and each of its Subsidiaries to:
(a) conduct : (i) conduct the Business Company’s business in the Ordinary Course in all material respects (except with respect to the Reorganizations); and (ii) each Reorganization in substantial conformity with its respective Reorganization Plan;
(b) not act in bad faith, or otherwise intentionally take material actions, that are substantially inconsistent with the long term value of the Company for the specific purpose of achieving any Contingent Consideration;
(c) make capital expenditures in all material respects in the Ordinary Course, and not make any other capital expenditures in excess of 7% of Revenue during the applicable year;
(d) conduct annual reviews of employees of the Business in the Ordinary Course in all material respects;
(i) pay and perform its debts and other obligations when due in the Ordinary Course (except those being contested in good faith), (ii) use commercially reasonable efforts consistent to maintain and preserve the services of the current officers and key employees of the Company (other than the individuals set forth on Schedule 6.19(a)) (provided that this clause (ii) shall not require the Company to increase the compensation payable to, or the benefits provided to, such current officers and key employees) and to maintain and preserve intact its business organization and advantageous business relationships and the goodwill of the suppliers, contractors, licensors, customers, distributors and others having business relations with the Ordinary Course and policies to invoice, collect and apply accounts receivable when due and not pre-pay, advance pay or extend any payables or credit outside of the Ordinary CourseCompany, (iii) sell (A) use commercially reasonable efforts to maintain the effectiveness of the Permits set forth on Section 3.13 and (B) maintain the effectiveness of the Permits required pursuant to Gaming Laws, (iv) use commercially reasonable efforts to keep and maintain the assets used in the business and operations of the Company Products consistent in good operating condition and repair, and (v) make the maintenance capital expenditures set forth on Section 6.01(a)(v) of the Seller Disclosure Letter. Notwithstanding the foregoing provisions of this Section 6.01(a), (i) the Seller will not be required to take any action prohibited by Section 6.01(b) in order to satisfy the Company’s or the Seller’s obligations under this Section 6.01(a) and (ii) neither the Company nor the Seller shall be deemed to have failed to satisfy its obligations under this Section 6.01(a) to the extent such failure resulted, directly or indirectly, from the Company’s or the Seller’s failure to take any action prohibited by Section 6.01(b).
(b) Without limiting the generality of Section 6.01(a), from the date of this Agreement until the earlier of the Closing or the termination of this Agreement pursuant to Article VII, except as otherwise expressly provided in this Agreement, required by Law, as specifically set forth in Section 6.01 of the Seller Disclosure Letter or as consented to in writing by the Buyers (which consent, other than as set forth in the Equity Purchase Agreement with respect to the PropCo Buyer, shall not be unreasonably withheld, conditioned or delayed; provided that in the event that Buyers do not deny a request for consent (other than a request for consent to take any action requiring the consent of the PropCo Buyer pursuant to Section 8.03 of the Equity Purchase Agreement) within five (5) Business Days of such request, the Buyers shall be deemed to have consented to such request), the Company shall not, and the Seller shall cause the Company not to:
(i) amend or otherwise change the Organizational Documents of the Company;
(ii) issue, sell, pledge, transfer, assign, license, abandon, dispose of or otherwise subject to any Encumbrance (other than Existing Debt Encumbrances) (x) any Equity Interest of the Company, or any options, warrants, convertible securities or other rights of any kind to acquire any such Equity Interests in the Company; or (y) any properties or assets of the Company including real property other than, in the case of tangible personal property or assets, sales or transfers of inventory in the Ordinary Course as of Business, transfers or disposals of inventory or equipment that is being retired or replaced in the Ordinary Course of Business, or transfers, assignments, licenses, abandonments or other disposals of Intellectual Property in the Ordinary Course of Business;
(iii) declare, set aside, make or pay any non-cash dividend or other non-cash distribution on or with respect to payment terms, discounting, license, service and maintenance terms, incentive programs, revenue recognition, deferral any Equity Interest of revenue and other material terms, and the Company;
(iv) except for reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any Reorganization Equity Interest, or make any other change with respect to the equity structure of the Company;
(v) acquire any Equity Interests in substantial conformity with its respective Reorganization Plan, use its commercially reasonable efforts consistent with any Person or any material amount of assets (excluding any equipment or inventory acquired in the Ordinary Course to preserve intact its present business organizationsof Business), keep available the services of its present officers and key employees and preserve its relationships with its customersor enter into any joint venture, suppliersstrategic alliance, distributors, licensors, licensees, and others having material business dealings with itexclusive dealing or noncompetition Contract;
(fvi) contribute capital to the Persons listed on Exhibit P to maintain its ownership percentage as adopt a plan of the Agreement Date solely to the extent it has the opportunity to participate in any equity complete or convertible equity fundraisingpartial liquidation, and except as otherwise approved by the Sellers and Parent; and
(g) where lawful to do sodissolution, keep Parent reasonably informed regarding the status ofmerger, and any communications with a Governmental Entity regardingconsolidation, any inquiriesrestructuring, claims, assessments, audits, examinations, disputes recapitalization or similar events with respect to Taxes other reorganization of the Company or otherwise alter such Company’s equity structure;
(vii) incur any Indebtedness or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the Indebtedness or other obligations of any Person, or make any loans or advances, except (x) in the Ordinary Course of Business, provided that such Indebtedness will be repaid at or before Closing or (y) guarantees of Indebtedness incurred under the Existing Xxxx Ohio Debt Documents (which guarantees will be released at Closing);
(viii) accelerate, amend in any material respect, waive, modify in any material respect or consent to the termination of any Material Contract, or accelerate, amend in any material respect, waive, modify in any material respect or consent to the termination of the Company’s rights thereunder;
(ix) enter into any Contract that if in effect on the date hereof would be a Material Contract, or amend in any material respect or terminate any Material Contract;
(x) other than as set forth in JCC Operating Budget, authorize, or make any commitment with respect to, any single capital expenditure that is in excess of $400,000 or capital expenditures that are, in the aggregate, in excess of $1,000,000 for JCC, other than capital expenditures in accordance with the capital expenditures plan set forth in Section 6.01(b)(x) of the Seller Disclosure Letter;
(xi) enter into any lease, sublease or license of real property or any renewal or any modification, amendment or termination thereof, except that for any of the foregoing the Buyers’ consent shall not be required in connection with (x) the renewal of any Tenant Lease exercised by the Tenant in accordance with the terms of such Tenant Lease or (y) entry into any lease, sublease or license of real property that is an arm’s length agreement on market terms for a term not to exceed six months and that in any event terminates prior to the Closing Date and pursuant to which the applicable tenant, subtenant or licensee is required to vacate its Subsidiaries greater premises before the Closing Date;
(xii) (A) increase the compensation payable to or to become payable to, or the benefits provided to, its directors, officers or employees or other consultants, except for (x) wage increases required by the terms of any Company Benefit Plan set forth on Section 3.15(a) of the Seller Disclosure Letter or collective bargaining agreement as in existence on the date hereof and (y) normal merit and cost-of-living increases, consistent with past practice, in base salaries or wages of employees or other consultants of the Company who are not directors or officers of the Company and who receive less than $5,000,000 100,000 in base salary from the Company; (B) grant or modify any severance, retention, change in control or termination payment to or loan or advance or accelerate any amount to, any director, officer or employee or other consultant of the Company; (C) accelerate the vesting or payment of any compensation or benefit for any director, officer, employee or other consultant of the Company; or (D) establish, adopt, enter into or amend any Benefit Plan, except for welfare plan renewals in the Ordinary Course of Business that do not result in material increased expense to the Company or as required by any Law or Benefit Plan set forth on Section 3.15(a) of the Seller Disclosure Letter as in effect on the date hereof; provided that the Company may award cash retention bonuses to one or more employees from time to time prior to the Closing, to be paid immediately prior to the Closing, in consideration for their continued services and employment through the Closing (such payments, “Retention Payments”) which, together with the employer portion of any payroll, social security, unemployment or similar Taxes related to such Retention Payments, shall be borne by the Seller and, for the avoidance of doubt, shall constitute Transaction Expenses of the Company, and none of the Buyers nor the Company shall have any Liability with respect to the Retention Payments;
(xiii) make or enter into any (A) collective bargaining agreement or (B) any Contract for the employment of any employee (other than an at will employee in the ordinary course of business who earns annual compensation, in the aggregate, of no more than $100,000 and is not an officer of the Company) or terminate any employee other than a termination for cause (other than an employee who is not an officer of the Company and who receives annual compensation, in the aggregate, of no more than $100,000);
(xiv) enter into or amend any Contract with any Related Party of the Company, other than Contracts with Related Parties of the Company which will be terminated at or prior to the Closing without any Liability to the Company;
(xv) make any change in any method of accounting or accounting practice or policy, except as required by GAAP or applicable Law;
(xvi) make or change any material Tax election, change any accounting period or method for Tax purposes, amend any Tax Return, settle or compromise any material Tax liability, waive or extend any statute of limitations in respect of any Tax (except as required by applicable Law and other than pursuant to an extension of time to file any Tax Return obtained in the Ordinary Course of Business);
(xvii) waive, release, assign, settle or compromise any Action, except for (A) claims, litigation or Action in the Ordinary Course of Business and for an amount not in excess of $250,000 and (B) any claim or Action that would not be expected to prohibit or restrict the Company from operating its business in materially the same manner as operated on the date of this Agreement;
(xviii) fail to maintain, with financially responsible insurance companies, insurance in such matters amounts and against such risks and losses as is maintained by it at present;
(xix) sell, lease, license, transfer or subject to an Encumbrance any one Tax AuthorityOwned Intellectual Property other than, in the case of Encumbrances, Existing Debt Encumbrances; or
(xx) agree, commit or resolve to take any of the actions prohibited by this Section 6.01(b).
(c) The Parties acknowledge and agree that in the event there is any inconsistency or conflict between the provisions of this Section 6.01 and the provisions set forth in Section 7.03 of the Equity Purchase Agreement, the provisions of Section 7.03 of the Equity Purchase Agreement shall control.
Appears in 1 contract
Conduct of the Business of the Company Prior to the Closing. During (a) From the period from the date of this Agreement Date and continuing until the earlier of the Closing or the termination of this Agreement and the Closing (the “Interim Period”)pursuant to Article VII, except (i) as required or otherwise expressly permitted by provided in this Agreement (including actions taken in substantial conformity with or the Reorganization Plans)Real Estate Purchase Agreement, (ii) as required by Applicable Law (including Applicable Law imposing any quarantineLaw, “shelter in place”, “stay at home”, workforce reduction, social distancing, shut down, closure or sequester in connection with or in response to COVID-19), (iii) as specifically set forth in Schedule 5.1 Section 6.01 of the Seller Disclosure Letter, Letter or (iv) as consented to in writing by Parent the Buyers (including by email in accordance with Section 10.2), which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall and shall cause each of its Subsidiaries to shall, and the Sellers Seller shall cause the Company and each of its Subsidiaries the Company Subsidiaries, to:
(a) conduct : (i) conduct the Business in the Ordinary Course in all material respects (except with respect to the Reorganizations); and (ii) each Reorganization in substantial conformity with its respective Reorganization Plan;
(b) not act in bad faith, or otherwise intentionally take material actions, that are substantially inconsistent with the long term value business of the Company for and the specific purpose of achieving any Contingent Consideration;
(c) make capital expenditures in all material respects Company Subsidiaries in the Ordinary Course, and not make any other capital expenditures in excess of 7% of Revenue during the applicable year;
(d) conduct annual reviews of employees of the Business in the Ordinary Course ordinary course in all material respects;
(i) pay and perform its debts and other obligations when due in the Ordinary Course (except those being contested in good faith), (ii) use commercially reasonable efforts consistent with to maintain and preserve intact their business organizations, properties and other assets, advantageous business relationships, the Ordinary Course and policies to invoice, collect and apply accounts receivable when due and not pre-pay, advance pay or extend any payables or credit outside effectiveness of the Ordinary Course, Permits set forth on Section 3.13 of the Seller Disclosure Letter and to keep available the services of their key employees and (iii) sell the Company Products consistent with the Ordinary Course as to payment terms, discounting, license, service and maintenance terms, incentive programs, revenue recognition, deferral of revenue and other material terms, and (iv) except for any Reorganization in substantial conformity with its respective Reorganization Plan, use its commercially reasonable efforts consistent to maintain the casino license under which the business of the Company and the Company Subsidiaries currently operates in good standing and to comply with applicable Gaming Law and the Ordinary Course obligations of the Company or any Company Subsidiary under the Development Agreement. Notwithstanding the foregoing provisions of this Section 6.01(a), (i) the Seller will not be required to preserve intact take any action prohibited by Section 6.01(b) in order to satisfy the Company’s or the Seller’s obligations under this Section 6.01(a) and (ii) neither the Company nor the Seller shall be deemed to have failed to satisfy its present business organizationsobligations under this Section 6.01(a) to the extent such failure resulted, keep available directly or indirectly, from the services Company’s or the Seller’s failure to take any action prohibited by Section 6.01(b).
(b) Without limiting the generality of its present officers and key employees and preserve its relationships Section 6.01(a), from the date of this Agreement until the earlier of the Closing or the termination of this Agreement pursuant to Article VII, except as otherwise expressly provided in this Agreement, required by Law, as specifically set forth in Section 6.01 of the Seller Disclosure Letter or as consented to in writing by the Buyers (provided, that the Buyers agree to promptly respond to any request for consent under this Section 6.01(b) (which consent, other than as set forth in the Real Estate Purchase Agreement with its customersrespect to PropCo Buyer, suppliersshall not be unreasonably withheld, distributorsconditioned or delayed)), licensorsthe Seller, licenseesin respect of the Company or any Company Subsidiary, shall not, and others having material business dealings with itshall cause the Company and each Company Subsidiary not to:
(i) amend or otherwise change the certificate of formation, operating agreement or equivalent organizational documents of the Company or any Company Subsidiary;
(fii) contribute capital issue, sell, pledge, transfer, assign, license, abandon, dispose of or otherwise subject to the Persons listed on Exhibit P to maintain its ownership percentage as any Encumbrance (x) any membership interest or other equity interest of the Agreement Date solely Company or any Company Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any such membership interests or any other equity or ownership interest or equity-equivalent interest in the Company or any Company Subsidiary; or (y) any material properties or assets of the Company or any Company Subsidiary, other than, in the case of tangible personal property, sales or transfers of inventory in the ordinary course of business consistent with past practice or sales, transfers or disposals of inventory or equipment that is being retired or replaced in the ordinary course of business consistent with past practice, or transfers, assignments, licenses, abandonments or other disposals of Intellectual Property in the ordinary course of business consistent with past practice;
(iii) declare, set aside, make or pay any dividend or other distribution (whether in cash, securities, or other property) on or with respect to any membership interests or other equity or ownership interest of the Company or any Company Subsidiary, except to the extent it has such cash dividend or distribution (x) would not result in the opportunity Company and the Company Subsidiaries having less than the minimum Cage Cash balance required under applicable Gaming Laws and (y) would not be reasonably likely to participate in adversely impact any equity or convertible equity fundraising, and except as otherwise approved by applicable Gaming Authority’s determination of the Sellers and Parent; and
(g) where lawful to do so, keep Parent reasonably informed regarding the status of, and any communications with a Governmental Entity regarding, any inquiries, claims, assessments, audits, examinations, disputes or similar events with respect to Taxes suitability of the Company or any of its Subsidiaries greater or Affiliates for any license, permit, findings of suitability or other authorization;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of membership interests or other equity or ownership interest, or make any other change with respect to the equity structure of the Company or any Company Subsidiary;
(v) acquire any corporation, partnership, limited liability company, other business organization or division thereof or any material amount of assets (but excluding any (1) equipment or inventory acquired in the ordinary course of business or (2) real property which such acquisition of real property shall be subject to the Real Estate Purchase Agreement), or enter into any joint venture, strategic alliance, exclusive dealing or noncompetition contract or arrangement;
(vi) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary, or otherwise alter the Company’s or any Company Subsidiary’s equity structure;
(vii) incur any Indebtedness or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, except (x) in the ordinary course of business consistent with past practice and (y) that will be repaid at or before the Closing;
(viii) accelerate, amend in any material respect, waive, modify in any material respect or consent to the termination of any Material Contract, or accelerate, amend in any material respect, waive, modify in any material respect or consent to the termination of the Company’s or any Company Subsidiary’s rights thereunder;
(ix) enter into any Contract that if in effect on the date hereof would be a Material Contract except any Contract described in clause (i), (vi) or (vii) of Section 3.08 (and no other clause thereof) in the ordinary course of business consistent with past practice;
(x) authorize, or make any commitment with respect to, any single capital expenditure that is in excess of $1,000,000 or capital expenditures that are, in the aggregate, in excess of $5,000,000 for the Company and the Company Subsidiaries taken as a whole;
(xi) enter into any lease, sublease or license of real property or any renewal, modification, amendment or termination of any of the foregoing (any of the foregoing, an “Occupancy Agreement”), other than (x) any renewal of a Tenant Lease exercised by the Tenant in accordance with the terms of such Tenant Lease and (y) entry into any lease, sublease or license of real property that (1) is an arm’s-length agreement on market terms, (2) is for a term not to exceed six months and that in any event terminates by its terms prior to the Closing Date and (3) pursuant to which the applicable tenant, subtenant or licensee is required to vacate its premises before the Closing Date;
(xii) (A) increase the compensation payable to or to become payable to, or the benefits provided to, its directors, officers or employees or other consultants, except for (x) wage increases required by the terms of any Benefit Plan or collective bargaining agreement as in existence on the date hereof and listed in Section 3.15(a) or 3.16(a) of the Seller Disclosure Letter and (y) normal merit and cost-of-living increases, in the ordinary course of business and consistent with past practice, in salaries or wages of employees or compensation of consultants of the Company or a Company Subsidiary who are not directors or officers of the Company or a Company Subsidiary and who receive less than $5,000,000 200,000 in annual base salary or consulting fees from the Company or any Company Subsidiary; (B) promise, grant or modify any severance, retention, change in control, termination or similar payment or benefit to, or loan or advance or accelerate any amount to, any director, officer or employee or consultant of the Company or any Company Subsidiary, other than any such non-loan amounts that are (1) payable to employees of the Company or Company Subsidiaries with an annual base salary of less than $100,000, (2) to the extent not paid prior to the MI Closing, treated as Current Liabilities as of the MI Closing, and (3) in the aggregate, less than 3% of the applicable employee’s annual base salary in effect as of the date of this Agreement, excluding, for purposes of this subclause (3), any severance provided pursuant to the terms of the Greektown Casino Severance Plan (executed on October 10, 2018); (C) accelerate the vesting, funding or payment of any compensation or benefit for any director, officer, employee or consultant of the Company or any Company Subsidiary; (D) establish, adopt, enter into, terminate or amend any collective bargaining agreement (or similar agreement with a labor organization) or any Benefit Plan (or any arrangement that would be a Benefit Plan if it were in effect as of the date of this Agreement), except for welfare plan renewals in the ordinary course of business consistent with past practice that do not result in material increased expense to the Company or any Company Subsidiary, or as required by any Law as in effect on the date hereof; (E) hire or otherwise retain the services of any new director, or executive officer of the Company or a Company Subsidiary; or (F) except as permitted by Section 6.03(c), adopt, enter into, grant, establish, renew, or set performance targets with respect to, any incentive compensation or program for incentive compensation;
(xiii) make or enter into any Contract for the employment of any employee (other than an at will employee in the ordinary course of business and consistent with past practice who earns annual compensation, in the aggregate, of no more than $200,000 and is not a director or officer of the Company or any Company Subsidiary) or terminate any employee other than a termination for cause without severance (other than an employee who is not an officer of the Company and who receives annual compensation, in the aggregate, of no more than $200,000);
(xiv) enter into or amend any Related Party Contract, except for any Related Party Contract that will be terminated at or before the Closing without any further liability or obligation (contingent or otherwise) of the Company, any Company Subsidiary or any other party thereunder;
(xv) make any change in any method of accounting or accounting practice or policy (including for Tax accounting purposes), except as required by GAAP or applicable Law;
(xvi) waive, release, assign, settle or compromise any Action if such waiver, release, assignment, settlement or compromise (A) with respect to the payment of monetary damages, involves the payment by the Company or Company Subsidiary of an amount in excess of $250,000 in any individual matter or (B) with respect to any nonmonetary terms and conditions therein, imposes or requires actions that would or would, individually or in the aggregate, reasonably be expected to materially restrict or limit the operations of the business of the Company and the Company Subsidiaries as conducted on the date hereof;
(xvii) fail to maintain, with financially responsible insurance companies, insurance in such matters amounts and against such risks and losses as is maintained by it at present;
(xviii) enter into any new line of business;
(xix) make, change or revoke any material Tax election, settle or compromise any Tax claim or Liability or claim for a refund of Taxes, incur any material Tax Liability outside of the ordinary course of business, change (or request any taxing authority to change) any aspect of its method of accounting for Tax purposes, change its annual Tax accounting period, enter into any closing agreement or other binding written agreement relating to Taxes with any taxing authority or any Tax sharing agreement, file any amended Tax Return, surrender any claim for a refund of Taxes, file any Tax Return other than one prepared in a manner consistent with past practices, or consent to any extension or waiver of the limitation period applicable to any Tax Authorityclaim or assessment (other than pursuant to an extension of time to file any Tax Return obtained in the ordinary course of business); or
(xx) agree, commit or resolve to take any of the actions prohibited by this Section 6.01(b).
Appears in 1 contract
