Conduct of the Business Pending the Closing. (a) During the period from the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VII, except (i) as required by applicable Law, (ii) as instructed or required by a Governmental Authority, (iii) as expressly required or contemplated by the terms of this Agreement, or (iv) to the extent Purchaser otherwise provides its prior consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), Parent and Seller shall cause the Company to comply with this Agreement, and otherwise ensure that (x) the Company shall conduct its business in the ordinary course of business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to preserve its business organization intact and maintain existing relations and goodwill with Governmental Authorities, rating agencies, customers, reinsurers, producers, insureds, suppliers, service providers and employees, and (y) except as set forth in Section 5.01(a) of the Parent Disclosure Schedule, the Company shall not (it being understood that no act or omission with respect to the matters specifically addressed by any provision of this clause (y) shall be deemed to be a breach of clause (x)): (i) (A) authorize for issuance, issue, sell, grant or subject to any Lien any shares of capital stock, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants or options to purchase any shares of capital stock or (B) redeem, purchase or otherwise acquire any of its shares of capital stock, or any rights, warrants or options to acquire any shares of capital stock; (ii) split, combine, subdivide, reclassify, redeem, purchase or otherwise acquire, directly or indirectly, any shares of capital stock; (iii) other than this Agreement and any Ancillary Agreements, adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company; (iv) (A) except for the payment of the Closing Dividend, declare, make, set aside, authorize or pay any dividends or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, stock or other securities or otherwise) or (B) incur, issue, assume, guarantee or otherwise become liable for any Indebtedness (other than (1) all obligations with respect to the net current Tax liabilities of the Company that are allocable to any taxable year (or portion thereof) ending on (and including), or prior to, the Closing Date (treating for purposes of this Agreement the taxable year of the Company that includes the Closing Date as closing on (and including) the Closing Date); (2) all Liabilities with respect to accrued but unpaid bonus payments, accrued or owed by the Company as of the Closing in respect of any performance period (or portion thereof) prior to and up to the Closing, together with the employer portion of any Taxes arising therefrom; and (3) all Liabilities with respect to accrued but unused vacation time, flexible time-off and sick pay to which any Business Employee is entitled pursuant to the policies applicable to such Business Employee immediately prior to the Closing) or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company; (v) amend, restate, supplement or otherwise modify its Organizational Documents; (vi) (A) other than in the ordinary course of business consistent with past practice, amend, modify, extend, cancel, rescind, waive any rights under, assign, fail to renew or terminate any operating leases or subleases (or group of related operating leases or subleases with respect to a single transaction or series of related transactions) under which the Company leases or occupies Leased Real Property or (B) enter into any new operating leases or subleases (or group of related operating leases or subleases with respect to a single transaction or series of related transactions) for leased real property; (vii) sell, lease, license or otherwise dispose of any of its material properties (other than Intellectual Property), rights, licenses, operations, product lines, businesses or assets with a purchase price for such material properties, rights, licenses, operations, product lines, businesses or assets, except (A) sales and licenses of products and services of the Company in the ordinary course of business consistent with past practice, (B) sales and dispositions of investment assets by the Company in the ordinary course of business consistent with past practice, (C) pursuant to any insurance or reinsurance Contracts in the ordinary course of business consistent with past practice or (D) pursuant to Material Contracts in force on the date hereof; (viii) make any loan, advance, guarantee or capital contribution to or investment in any Person, except advances to employees for expenses not to exceed $1,000 in any single instance or in excess of $20,000 in the aggregate in the ordinary course of business consistent with past practice; (ix) engage in any transactions with respect to investment assets by the Company outside the ordinary course of business consistent with past practice, other than with respect to the liquidation of investment assets pursuant to Section 5.14 or to the extent otherwise agreed by Purchaser in writing as to any particular investment asset; (x) make or authorize any capital expenditures in excess of $2,500 in any single instance or in excess of $50,000 in the aggregate during any twelve (12) month period; (xi) sell, transfer, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any material Company Intellectual Property or material Company IT Assets, other than (A) in the ordinary course of business consistent with past practice, (B) pursuant to Contracts in force on the date hereof and made available to Purchaser on or prior to the date hereof, and (C) dispositions of obsolete or worn-out IT Assets; (xii) make any changes to how the Company Processes Personal Information, other than non-material changes made in the ordinary course of business consistent with past practice; (xiii) make any acquisitions of (including by merger, consolidation or acquisition of stock or assets or any other business combination) assets, any corporation, partnership, other business organization or any division thereof or equity interests therein or a substantial portion of the assets thereof; (xiv) pay, discharge, settle or compromise any pending or threatened Action which (A) requires payment to or by the Company (exclusive of attorneys’ fees) in excess of $20,000 in any single instance or in excess of $200,000 in the aggregate (other than ordinary course payments or settlements under insurance or reinsurance Contracts that are within the applicable policy limits under such insurance or reinsurance Contract) or
Appears in 1 contract
Samples: Stock Purchase Agreement
Conduct of the Business Pending the Closing. During the Interim Period, except (a) During as set forth in the period from the date hereof until the earlier corresponding section of Section 6.02 of the Effective Time and the termination of this Agreement in accordance with Article VII, except Company Disclosure Schedules; (ib) as required by applicable Law, ; (iic) as instructed or otherwise expressly required by a Governmental Authority, this Agreement (iiiincluding the Internal Restructuring) as expressly required or contemplated by the terms of this Agreement, other Transaction Documents; or (ivd) to with the extent Purchaser otherwise provides its prior consent in writing of Buyer (such which consent shall not to be unreasonably withheld, delayed or conditioned), Parent the Acquired Companies shall not, and Seller and the Company shall cause the Company Acquired Companies to comply with this Agreement, and otherwise ensure that (x) the Company shall conduct its business in the ordinary course of business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to preserve its business organization intact and maintain existing relations and goodwill with Governmental Authorities, rating agencies, customers, reinsurers, producers, insureds, suppliers, service providers and employees, and (y) except as set forth in Section 5.01(a) of the Parent Disclosure Schedule, the Company shall not (it being understood that no act or omission with respect to the matters specifically addressed by any provision of this clause (y) shall be deemed to be a breach of clause (x)):not:
(i) (A) authorize for issuancetransfer, issue, grant, deliver, sell, grant authorize, encumber, propose, enter into or subject dispose of (i) any Equity Interests of any Acquired Company, (ii) any options, warrants, calls or other rights to purchase or otherwise acquire Equity Interests of any Lien any shares of capital stockAcquired Company, or any rights or other securities or rights instruments convertible into, or exchangeable or exercisable for, or evidencing any of the right to subscribe for foregoing, (iii) any shares of capital stockstock appreciation, or any rights, warrants or options to purchase any shares of capital phantom stock or other similar right with respect to any Acquired Company or (Biv) redeem, purchase or otherwise acquire any Contracts obligating an Acquired Company to issue any Equity Interests of its shares of capital stock, or any rights, warrants or options to acquire any shares of capital stockAcquired Company;
(ii) spliteffect any recapitalization, combinereclassification, subdivide, reclassify, redeem, purchase equity split or otherwise acquire, directly or indirectly, any shares other similar change in the capitalization of capital stockany Acquired Company;
(iii) other than this Agreement and declare, set aside or pay any Ancillary Agreements, adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization dividend or other reorganization distribution in respect of its Equity Interests, or redeem or purchase any of its Equity Interests or change any rights, preferences or privileges of any of its outstanding Equity Interests, except for cash distributions required by the Organizational Documents of the Company;Company or any Subsidiary of the Company that is wholly owned by the Company that are paid in full prior to the time at which Closing Cash is measured.
(iv) (A) except for the payment adopt a plan of the Closing Dividendcomplete or partial liquidation, declaredissolution, makeconsolidation, set asidereorganization, authorize restructuring, merger or pay any dividends or make any distribution other reorganization with respect to its outstanding shares any Acquired Company, or allow any of capital stock (whether in cashthe foregoing to occur, assets, stock or other securities or otherwise) or (B) incur, issue, assume, guarantee file a petition in bankruptcy under any provisions of any applicable bankruptcy Law on behalf of any Acquired Company or otherwise become liable for any Indebtedness (other than (1) all obligations with respect consent to the net current Tax liabilities of the Company that are allocable to any taxable year (or portion thereof) ending on (and including), or prior to, the Closing Date (treating for purposes of this Agreement the taxable year of the Company that includes the Closing Date as closing on (and including) the Closing Date); (2) all Liabilities with respect to accrued but unpaid bonus payments, accrued or owed by the Company as of the Closing in respect filing of any performance period (or portion thereof) prior to and up to the Closing, together with the employer portion of bankruptcy petition against any Taxes arising therefrom; and (3) all Liabilities with respect to accrued but unused vacation time, flexible time-off and sick pay to which Acquired Company under any Business Employee is entitled pursuant to the policies applicable to such Business Employee immediately prior to the Closing) or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Companysimilar Law;
(v) amendamend the Organizational Documents of any Acquired Company (including by merger, restate, supplement consolidation or otherwise modify its Organizational Documentsotherwise);
(vi) (A) other make any change in the accounting period or any method, principles or practices of the accounting of any Acquired Company (including any change in depreciation, amortization, cash management policies or the collection and treatment of accounts receivable as generally applied to the Company’s customers) or (B) revalue any of its assets or change in any material respect the policies or practices regarding accounts receivables or accounts payable or fail to manage working capital in accordance with past practices (including writing down the value of inventory, if applicable, or writing off notes or accounts receivable otherwise than in the ordinary course Ordinary Course of Business), except, in each case, as required by changes in GAAP or by applicable Law;
(vii) make any material Tax election, file any material amended Tax Return, settle or compromise any material Tax liability, enter into any closing agreement with respect to any material Tax, surrender any right to claim a material Tax refund or incur any material Tax liability, or consent to any extension or waiver of the statute of limitations period applicable to any material Tax, Tax Return or claim for Tax;
(viii) (A) acquire or agree to acquire, directly or indirectly by merging or consolidating with, or by purchasing or licensing a substantial portion of the assets of, or by any other manner, (x) any business consistent or any corporation, partnership, association or other business organization or division thereof or (y) any Equity Interests in any Person or (B) otherwise acquire or agree to acquire any assets other than (1) inventory acquired in the Ordinary Course of Business and (2) capital assets acquired in accordance with past practicethe capital expenditure budget set forth in Section 6.01(c) of the Company Disclosure Schedules;
(ix) enter into any Contract with respect to a joint venture, amendstrategic alliance or partnership;
(x) sell, modifylease, extendsublease, license, mortgage, pledge or otherwise encumber or dispose of any of the tangible properties or assets of the Acquired Companies, including the Leased Premises, except sales of assets or inventory in the Ordinary Course of Business;
(xi) (i) sell, transfer, assign, or otherwise dispose of, (ii) abandon, cancel, rescindforfeit, waive any rights under, assignpermit to lapse, fail to renew or fail to continue to prosecute, protect or defend, (iii) grant any license (other than non-exclusive licenses of Intellectual Property granted to customers or end users for the use by such customers or end users of the Acquired Companies’ services, in each case, entered into in the Ordinary Course of Business), or (iv) subject to any Lien (other than a Permitted Lien or Liens that will be extinguished in connection with the Closing pursuant to a Payoff Letter), in each case of (i)-(iv), any Company Intellectual Property;
(xii) enter into any Contract to lease, license, use, own or operate any real property that is or would be material to the Business, taken as a whole, except in the Ordinary Course of Business;
(xiii) hire or terminate (other than for cause) the employment of any operating leases employee of the Acquired Companies with a base salary above $175,000;
(A) modify, extend, or subleases enter into any labor agreement, collective bargaining agreement or any other labor-related agreements or arrangements with any labor union, labor organization or works council (collectively, a “Union”), (B) recognize or certify any Union or group of employees as the bargaining representative of any of the employees of the Acquired Companies, (C) enter into any neutrality agreement or remain neutral in any Union organizing campaign, or (D) settle any labor grievances regarding any labor agreement, collective bargaining agreement or any other labor-related operating leases agreements or subleases arrangements with any Union or unfair labor practice charges, file any unfair labor practice charges, or any other action similar to the foregoing (except to the extent that (I) Seller would be solely responsible for any settlement costs and expenses of grievances arising from acts or omissions that occurred prior to the Closing, including attorneys’ fees and expenses, or (II) such settlement is equal to or less than $150,000, in each case, with respect to a single transaction any Acquired Company or series any of related transactionstheir current or former employees, directors, independent contractors, consultants or other service providers);
(xv) under which except in the Ordinary Course of Business or as required by an Employee Benefit Plan listed on Section 3.15(a) of the Company leases Disclosure Schedules, (A) establish, adopt, enter into, terminate or occupies Leased Real Property materially amend any Employee Benefit Plan or plan, program, policy, practice, agreement or arrangement that would be an Employee Benefit Plan if it had been in effect on the date of this Agreement; (B) grant or pay, or commit to grant or pay, any (I) bonus, incentive or other similar payment or benefit, or (II) equity or equity-related award or profit-sharing award or other similar payment or benefit; (C) increase, or commit to increase, the amount of wages, salary, bonuses, commissions, fringe benefits, severance or other compensation, benefits or remuneration payable to any current or former employee or director of, or individual service provider to, any of the Acquired Companies; or (D) take any action to accelerate any payment or benefit, the vesting or payment of any equity, equity-based or non-equity based award or the funding of any payment or benefit, payable or to become payable to any current or former employee or director of, or individual service provider to, any Acquired Company;
(xvi) materially change the amount of, or terminate or fail to maintain or materially amend or modify, Insurance Policy to lapse, in each case, unless such Insurance Policy is replaced by a substantially comparable policy;
(xvii) materially change the manner in which it extends warranties, discounts or credits to customers;
(xviii) except for Indebtedness that is repaid prior to the Closing or will otherwise be reflected in the Closing Indebtedness Amount, incur any Indebtedness (or issue any debt securities) or assume, guarantee or endorse any Indebtedness of (or any debt securities issued by);
(xix) (A) amend, violate, terminate, cancel, fail to exercise an expiring renewal option or materially modify or accelerate or waive any material term or right of any Material Contract (other than termination upon any expiration of any Material Contract in accordance with its terms where no renewal option was available), or (B) enter into any new operating leases or subleases (or group a Material Contract other than in the Ordinary Course of related operating leases or subleases with respect to a single transaction or series of related transactions) for leased real propertyBusiness;
(viixx) sellenter into any transaction with Seller or any Affiliate of Seller or any Company Related Party that, lease, license or otherwise dispose of any of its material properties (other than Intellectual Property), rights, licenses, operations, product lines, businesses or assets with a purchase price for such material properties, rights, licenses, operations, product lines, businesses or assets, except (A) sales and licenses of products and services of the Company in the ordinary course of business consistent with past practice, (B) sales and dispositions of investment assets by the Company in the ordinary course of business consistent with past practice, (C) pursuant to any insurance or reinsurance Contracts in the ordinary course of business consistent with past practice or (D) pursuant to Material Contracts in force on the date hereof;
(viii) make any loan, advance, guarantee or capital contribution to or investment in any Person, except advances to employees for expenses not to exceed $1,000 in any single instance or in excess of $20,000 in the aggregate in the ordinary course of business consistent with past practice;
(ix) engage in any transactions with respect to investment assets by the Company outside the ordinary course of business consistent with past practice, other than with respect to the liquidation of investment assets pursuant to Section 5.14 or to the extent otherwise agreed by Purchaser in writing as to any particular investment asset;
(x) make or authorize any capital expenditures in excess of $2,500 in any single instance or in excess of $50,000 in the aggregate during any twelve (12) month period;
(xi) sell, transfer, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any material Company Intellectual Property or material Company IT Assets, other than (A) in the ordinary course of business consistent with past practice, (B) pursuant to Contracts in force on the date hereof and made available to Purchaser on or if entered into prior to the date hereof, would be required to be disclosed in Section 3.12(a)(xv) or Section 3.19 of the Company Disclosure Schedules;
(xxi) defer payment of any accounts payable (other than in the Ordinary Course of Business) or make any discount, accommodation or other concession (other than in the Ordinary Course of Business) in order to accelerate or induce the collection of any receivable;
(xxii) create, subject to or place any Lien (other than a Permitted Lien or Liens that will be extinguished in connection with the Closing pursuant to a Payoff Letter) on any of its assets, rights or properties;
(xxiii) (A) lend any money, other than reasonable and normal advances to employees for bona fide expenses, (B) make any investments in or capital contributions to, any Person or (C) dispositions of obsolete forgive or worn-out IT Assetsdischarge in whole or in part any outstanding loans or advances;
(xiixxiv) make cancel, release or assign any changes material Indebtedness owed to how the Company Processes Personal Information, other than non-material changes made in the ordinary course of business consistent with past practiceany Person except pursuant to a Payoff Letter;
(xiiixxv) make implement any acquisitions of (including by merger, consolidation or acquisition of stock or assets or any other business combination) assets, any corporation, partnership, other business organization or any division thereof or equity interests therein or a substantial portion of employee layoffs that would reasonably be expected trigger the assets thereofWARN Act;
(xivxxvi) pay, dischargeenter into a new line of business or abandon or discontinue any existing line of business;
(xxvii) create any Subsidiary of the Company or any of its Subsidiaries;
(xxviii) compromise, settle or agree to compromise or settle any pending Proceeding or threatened Action investigation other than any settlement that (i) provides solely for money damages payable by any of the Acquired Companies that are paid in full prior to the time at which Closing Cash is measured and (Aii) requires payment does not involve any injunctive or other non-monetary relief or impose restrictions on the Acquired Companies that would be binding on Buyer or any of the Acquired Companies following the Closing; or
(xxix) resolve, announce an intention, authorize, commit, agree or enter into any Contract to or do anything prohibited by this Section 6.02. For purposes of this Section 6.02, “Material Contract” includes any Contract arising subsequent to the date hereof that would have been required to be listed on the Company (exclusive of attorneys’ fees) Disclosure Schedules pursuant to Section 3.12 had such Contract been in excess of $20,000 in any single instance or in excess of $200,000 in effect on the aggregate (other than ordinary course payments or settlements under insurance or reinsurance Contracts that are within the applicable policy limits under such insurance or reinsurance Contract) ordate hereof.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Apogee Enterprises, Inc.)
Conduct of the Business Pending the Closing. (a) During Except as otherwise expressly contemplated by this Agreement or with the period prior written consent of Purchasers or except as described on Schedule 6.3, from the date hereof until the earlier Closing Date, Sellers and the Foreign Subsidiaries:
(a) shall not sell, transfer, abandon, permit to lapse or otherwise dispose of any of the Effective Time and the termination assets of this Agreement in accordance with Article VII, such Seller or Foreign Subsidiary (including any Permitted Disposition) except (i) as required by applicable Law, Excluded Assets and (ii) as instructed the sale of equipment not in excess of ₤100,000 individually or required by a Governmental Authority₤500,000 in the aggregate and Inventory, in each case, in the Ordinary Course of Business;
(iiib) as expressly required or contemplated by the terms of this Agreement, or (iv) to the extent Purchaser otherwise provides its prior consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), Parent and Seller shall cause the Company to comply with this Agreement, and otherwise ensure that (x) the Company shall conduct its business the Business in the ordinary course Ordinary Course of business Business (including payment of accounts payable, purchasing and maintaining appropriate levels of Inventory, performing all maintenance and repairs consistent with past practice andpractice, to the extent consistent therewith, use its reasonable best efforts to preserve its business organization intact making authorized capital expenditures and maintain existing relations and goodwill with Governmental Authorities, rating agencies, customers, reinsurers, producers, insureds, suppliers, service providers and employees, and (y) except as set forth in Section 5.01(a) of the Parent Disclosure Schedule, the Company shall not (it being understood that no act or omission with respect to the matters specifically addressed by any provision of this clause (y) shall be deemed to be a breach of clause (xcollecting accounts receivable)):
(i) (A) authorize for issuance, issue, sell, grant or subject to any Lien any shares of capital stock, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants or options to purchase any shares of capital stock or (B) redeem, purchase or otherwise acquire any of its shares of capital stock, or any rights, warrants or options to acquire any shares of capital stock;
(iic) splitshall pay all amounts of fees, combine, subdivide, reclassify, redeem, purchase or otherwise acquire, directly or indirectly, any shares costs and expenses outstanding to the U.K. Trustees and advisers to the U.K. Trustees as of capital stockimmediately prior to Closing;
(iiid) other than this Agreement and any Ancillary Agreementsshall not authorize, adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company;
(iv) (A) except for the payment of the Closing Dividend, declare, make, set aside, authorize declare or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, stock or other securities) other than to another Seller or Foreign Subsidiary;
(e) shall not reclassify, combine, split, subdivide, redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock or membership interests, or make any other change with respect to its capital structure;
(f) shall not issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of its capital stock or other ownership interest in any Seller or Foreign Subsidiary or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, ownership interest or convertible or exchangeable securities or otherwisetake any action to cause to be exercisable any otherwise unexercisable option under any existing stock option plan;
(g) shall use commercially reasonable efforts (taking into account the condition of the Business and the transactions contemplated by this Agreement) to preserve intact the Business, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its suppliers, customers, distributors and any others with whom or with which it has business relations;
(h) shall not, directly or indirectly, cause or permit any state of affairs, action or omission that constitutes, or could lead to, a Material Adverse Effect;
(i) shall not (i) grant or announce any stock option, equity or incentive awards or the increase in the salaries, bonuses or other compensation and benefits payable by any Seller to any of the employees, directors or other service providers of the Business; (ii) hire any new management employees to the Business, (iii) pay or agree to pay any pension, retirement allowance, retention, termination or severance pay, bonus or other employee benefit (including the amounts included in the Disclosed Severance Agreements or the Retention Agreements) not required by any existing Employee Benefit Plan to any employee, director or other service provider of the Business, whether past or present, (iv) enter into or amend any management contracts of employment or any management consulting, bonus, severance, retention, retirement or similar agreement (including the Disclosed Severance Agreements and the Retention Agreements prior to the payment dates in accordance with their respective terms), or (Bv) except as required to ensure that any Employee Benefit Plan is not then out of compliance with applicable Law, enter into or adopt any new, or materially increase benefits under or renew, amend or terminate any existing, Employee Benefit Plan or any Collective Bargaining Agreement, Foreign Pension Scheme or Foreign Employee Benefit Plan;
(j) shall not change in any material respects any financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP, SEC rule or policy or applicable Law;
(k) shall not adopt any amendments to its articles of incorporation or bylaws or similar applicable charter documents;
(l) shall not create any new Subsidiary;
(m) shall not incur, issue, assume, guarantee guarantee, prepay or otherwise become liable for for, or modify in any material respect the terms of, any Indebtedness (other than (1) all obligations with respect to the net current Tax liabilities of the Company that are allocable to any taxable year (or portion thereof) ending on (incur Contingent Obligations and including), or prior to, the Closing Date (treating for purposes of this Agreement the taxable year of the Company that includes the Closing Date as closing on (and including) the Closing Date); (2) all Liabilities with respect to accrued but unpaid bonus payments, accrued or owed by the Company as of the Closing in respect of any performance period (or portion thereof) prior to and up to the Closing, together with the employer portion of any Taxes arising therefrom; and (3) all Liabilities with respect to accrued but unused vacation time, flexible time-off and sick pay to which any Business Employee is entitled pursuant to the policies applicable to such Business Employee immediately prior to the Closing) or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company;
(v) amend, restate, supplement or otherwise modify its Organizational Documents;
(vi) (A) other than in the ordinary course of business consistent with past practice, amend, modify, extend, cancel, rescind, waive any rights under, assign, fail to renew or terminate any operating leases or subleases (or group of related operating leases or subleases with respect to a single transaction or series of related transactions) under which the Company leases or occupies Leased Real Property or (B) enter into any new operating leases or subleases (or group of related operating leases or subleases with respect to a single transaction or series of related transactions) for leased real property;
(vii) sell, lease, license or otherwise dispose of any of its material properties (other than Intellectual Property), rights, licenses, operations, product lines, businesses or assets with a purchase price for such material properties, rights, licenses, operations, product lines, businesses or assets, except (A) sales and licenses of products and services of the Company in the ordinary course of business consistent with past practice, (B) sales and dispositions of investment assets by the Company in the ordinary course of business consistent with past practice, (C) pursuant to any insurance or reinsurance Contracts in the ordinary course of business consistent with past practice or (D) pursuant to Material Contracts in force on the date hereof;
(viii) make any loan, advance, guarantee or capital contribution to or investment in any Person, except advances to employees for expenses not to exceed $1,000 in any single instance or in excess of $20,000 in the aggregate in the ordinary course of business consistent with past practice;
(ix) engage in any transactions with respect to investment assets by the Company outside the ordinary course of business consistent with past practice, other than with respect to the liquidation of investment assets pursuant to Section 5.14 or to the extent otherwise agreed by Purchaser in writing as to any particular investment asset;
(x) make or authorize any capital expenditures in excess of $2,500 in any single instance or in excess of $50,000 in the aggregate during any twelve (12) month period;
(xi) sell, transfer, lease, license, mortgagetransfer, pledgeexchange or swap, surrendermortgage or otherwise encumber (including securitizations), encumber, divest, cancel, abandon or allow subject to lapse or expire any Lien or otherwise dispose of any material Company Intellectual Property or material Company IT Assets, other than (A) in the ordinary course of business consistent with past practice, (B) pursuant to Contracts in force on the date hereof and made available to Purchaser on or prior to the date hereof, and (C) dispositions of obsolete or worn-out IT Assets;
(xii) make any changes to how the Company Processes Personal Information, other than non-material changes made in the ordinary course of business consistent with past practice;
(xiii) make any acquisitions of (including whether by merger, consolidation or acquisition of stock or assets assets, license or otherwise), any material portion of its or its Affiliates’ properties or assets, including the capital stock or other equity interest of Foreign Subsidiaries, other than (i) pursuant to existing agreements in effect prior to the execution of this Agreement, (ii) as may be required by applicable Law or any Governmental Entity in order to permit or facilitate the consummation of the transactions contemplated by this Agreement or (iii) dispositions of obsolete equipment in the Ordinary Course of Business;
(n) shall not fail to pay any Tax (other than Taxes disputed in good faith) when it becomes due and payable;
(o) shall not modify, amend, terminate or waive any rights under any Material Contract, or any Contract that would be a Material Contract if in effect on the date of this Agreement, in any material respect in a manner which is adverse to any Seller or Foreign Subsidiary;
(p) shall not enter into any Material Contracts other than in the Ordinary Course of Business consistent with past practice;
(q) shall not enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Insider of such Seller or Foreign Subsidiary;
(r) shall not enter into any new line of business combinationor discontinue any line of business;
(s) (i) shall not settle, pay or discharge, any claim, Liability, obligation litigation, investigation, arbitration or Proceeding against such Person, except in the Ordinary Course of Business not in excess of $50,000 individually or $200,000 in the aggregate, excluding any amounts which may be paid under existing insurance policies and (ii) shall not waive its rights to, discharge, settle or satisfy any claim, Liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than in the Ordinary Course of Business;
(t) shall not (i) take, or fail to take, any action that could reasonably be expected to result in, any loss, lapse, abandonment, invalidity or unenforceability of any material Intellectual Property; or (ii) enter into any agreement with any other person that materially limits or restricts the ability of any Seller or Foreign Subsidiary to conduct certain activities or use certain assets (including any Intellectual Property);
(u) shall make the capital expenditures with respect to the commitments on Schedule 6.3(u) in the period specified in Schedule 6.3(u);
(v) shall not authorize, or make any commitment with respect thereto, any capital expenditure in excess of $100,000 individually or $300,000 in the aggregate or as set forth on Schedule 6.3(u);
(w) shall make the expenditures with respect to (i) the planned closure of the Madrid facility and related costs associated with the sale of real estate and assets and severance and other facility closure costs (the “Madrid Sale”), (ii) the sale or disposal of the plant, facilities, and real property in Brussels and severance and other facility closure costs (the “Brussels Sale”) and (iii) the work force reduction and related social plan costs and costs to close or downsize the pharmaceutical packaging business (the “Pharmaceutical Rationalization”);
(x) shall not fail to maintain in full force and effect material insurance policies covering any Seller or Foreign Subsidiary and their respective properties, assets and businesses in a form and amount consistent with past practice;
(y) shall not acquire (including by merger, consolidation, or acquisition of stock or assets, ) or make any investment in any interest in any corporation, partnership, limited liability company, association, trust or any other business entity, group (as such term is used in Section 13 of the Exchange Act) or organization (including, a Governmental Entity), or any division thereof or equity interests therein or a substantial portion of the any assets thereof;
(xivz) pay, discharge, settle or compromise any pending or threatened Action which (A) requires payment shall cause the Other U.S. Subsidiaries to or by the Company (exclusive of attorneys’ fees) in excess of $20,000 not engage in any single instance transaction related to the Business; and
(aa) shall not agree, in writing or in excess otherwise, or announce an intention, to take any of $200,000 in the aggregate (other than ordinary course payments or settlements under insurance or reinsurance Contracts that are within the applicable policy limits under such insurance or reinsurance Contract) orforegoing actions.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) During the period from From the date hereof until the earlier of the Effective Time Closing Date and the termination of this Agreement in accordance with Article VIIAgreement, except (iA) as set forth on Schedule 5.1, (B) as required by applicable Law, (iiC) as instructed or required by a Governmental Authority, (iii) as expressly required or otherwise contemplated by this Agreement or the terms of this Agreement, other Transaction Documents or (ivD) to with the extent Purchaser otherwise provides its prior consent in writing of Buyer (such which consent shall not to be unreasonably withheld, delayed or conditioned), Parent and each Seller (1) shall cause the Company Acquired Companies to comply with this Agreementuse their Best Efforts to conduct the Business, and otherwise ensure that (x) the Company shall conduct its business in all material respects, in the ordinary course Ordinary Course of business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to preserve its business organization intact and maintain existing relations and goodwill with Governmental Authorities, rating agencies, customers, reinsurers, producers, insureds, suppliers, service providers and employeesBusiness, and (y) except as set forth in Section 5.01(a) of the Parent Disclosure Schedule, the Company shall not (it being understood that no act or omission with respect to the matters specifically addressed by any provision of this clause (y2) shall be deemed not, and shall cause each Acquired Company to be a breach of clause (x)):not:
(ia) (A) authorize for issuancetransfer, issue, sell, authorize, sell encumber or dispose of any equity interests of any Acquired Company or grant options, warrants, calls or subject other rights to any Lien any shares of capital stock, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants or options to purchase any shares of capital stock or (B) redeem, purchase or otherwise acquire any equity securities of its shares of capital stock, or any rightsstock appreciation, warrants phantom stock or options other similar right with respect to acquire any shares Acquired Company, provided that the foregoing restrictions shall not apply to any securities of capital stocka joint venture formed on or after the date hereof;
(iib) spliteffect any recapitalization, combine, subdivide, reclassify, redeem, purchase reclassification or otherwise acquire, directly or indirectly, any shares other change in the capitalization of capital stockany Acquired Company;
(iiic) other than this Agreement and any Ancillary Agreements, adopt a plan or agreement of complete or partial liquidation or dissolutionliquidation, merger, consolidation, restructuring, recapitalization dissolution or other reorganization of the with respect to any Acquired Company;
(iv) (Ad) except for as required by applicable Law, amend the payment Organizational Documents of the Closing Dividend, declare, make, set aside, authorize or pay any dividends or make any distribution with respect to its outstanding shares of capital stock Acquired Company (whether in cashby merger, assets, stock or other securities consolidation or otherwise) or (B) incur, issue, assume, guarantee or otherwise become liable for any Indebtedness (other than (1) all obligations with respect to the net current Tax liabilities of the Company that are allocable to any taxable year (or portion thereof) ending on (and including), or prior to, the Closing Date (treating for purposes of this Agreement the taxable year of the Company that includes the Closing Date as closing on (and including) the Closing Date); (2) all Liabilities with respect to accrued but unpaid bonus payments, accrued or owed by the Company as of the Closing in respect of any performance period (or portion thereof) prior to and up to the Closing, together with the employer portion of any Taxes arising therefrom; and (3) all Liabilities with respect to accrued but unused vacation time, flexible time-off and sick pay to which any Business Employee is entitled pursuant to the policies applicable to such Business Employee immediately prior to the Closing) or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company;
(ve) amendmake any material change in any method of accounting or accounting practice of any Acquired Company, restateexcept as required by concurrent changes in GAAP, supplement as agreed to by its independent public accountants, or otherwise modify its Organizational Documentsas required by applicable Law;
(vif) (A) permit any Acquired Company to acquire by merging or consolidating with, or purchasing substantially all the assets of, any corporation, partnership, association or other than in business organization or division thereof, provided that the ordinary course foregoing restrictions shall not apply to the formation of business consistent with past practicea joint venture, amend, modify, extend, cancel, rescind, waive any rights under, assign, fail to renew or terminate any operating leases or subleases (or group the transfer of related operating leases or subleases with respect assets to a single transaction joint venture (whether now or series of related transactions) hereafter existing), with any protégé firm for which an Acquired Company is a mentor under which the Company leases or occupies Leased Real Property or (B) enter into any new operating leases or subleases (or group of related operating leases or subleases with respect to a single transaction or series of related transactions) for leased real propertySmall Business Administration’s Mentor-Protégé program;
(viig) sell, lease, license sublease, mortgage, pledge or otherwise encumber or dispose of any of its the material properties (other than Intellectual Property), rights, licenses, operations, product lines, businesses or assets with a purchase price for such material properties, rights, licenses, operations, product lines, businesses or assetsof the Acquired Companies, except in the Ordinary Course of Business or as described in the exception set forth in clause (Af) sales and licenses of products and services above;
(h) enter into any Contract materially limiting in any way the ability of the Company Acquired Companies to compete with any Person in any geographic location or any line of business;
(i) subject to Section 11.12, implement any plant closing or layoff of employees of the ordinary course Acquired Companies that would be reasonably expected to implicate the WARN Act (or any similar state, local or foreign Law) with respect to the Acquired Companies;
(j) make any loan or enter into any transaction with any of business its officers, directors, partners or Affiliates other (i) than arms length transactions consistent with past practice, (Bii) sales cash dividends or (iii) pursuant to Material Contracts listed on Schedule 3.13;
(k) terminate or modify in any material and dispositions adverse respect any Material Contract, or any government license, permit or other authorization, other than, in each case, (i) in the Ordinary Course of investment assets Business, (ii) as required by applicable Law, or (iii) as required by the terms of any Contract to which an Acquired Company is a party (to the extent such Contract is set forth on the Disclosure Schedule or is entered into in accordance with this Agreement);
(l) enter into any new, or amend any existing, Material Contracts (including, without limitation, any real property lease agreements, other than project or client-paid offices or permanent offices where the annual base rent is less than $1,000,000, and collective bargaining agreements), except (i) any of the foregoing in the ordinary course Ordinary Course of business Business and consistent in all material respects with past practice, (Cii) pursuant for commitments relating to any insurance or reinsurance Contracts in the ordinary course of business capital expenditures consistent with past practice or (D) pursuant the budget provided to Material Contracts in force on Buyer prior to the date hereof), (iii) as required by applicable Law, or (iv) as required by the terms of any Contract to which an Acquired Company is a party (to the extent such Contract is set forth on the Disclosure Schedule or is entered into in accordance with this Agreement);
(viiim) make establish or amend any loanpension, advanceretirement, guarantee profit sharing or capital contribution to stock bonus plan or investment in Multiemployer Plan covering the employees of the Acquired Companies;
(n) increase the compensation, incentive arrangements or other benefits of any Personofficers or employees of the Acquired Companies, except advances to employees for expenses not to exceed $1,000 in any single instance or in excess of $20,000 annual increases made in the aggregate in the ordinary course Ordinary Course of business Business consistent with past practice;
(ixo) engage discharge or hire any Person as an officer of an Acquired Company or to serve in any transactions executive capacity with respect to investment assets by the Company outside the ordinary course of business consistent with past practiceAcquired Companies, other than with respect to the liquidation of investment assets pursuant to Section 5.14 or to the extent otherwise agreed by Purchaser than, in writing as to any particular investment asset;
each case, (x) make or authorize any capital expenditures in excess of $2,500 in any single instance or in excess of $50,000 in the aggregate during any twelve (12) month period;
(xi) sell, transfer, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any material Company Intellectual Property or material Company IT Assets, other than (Ai) in the ordinary course Ordinary Course of business Business and on terms and conditions consistent in all material respects with past practice, (Bii) pursuant as required by applicable Law, or (iii) as required by the terms of any Contract to Contracts in force which an Acquired Company is a party (to the extent such Contract is set forth on the date hereof and made available Disclosure Schedule or is entered into in accordance with this Agreement); or
(p) enter into any Contract to Purchaser on or do anything prohibited by this Section 5.1; provided, however, that, the foregoing notwithstanding, Sellers and/or the Acquired Companies may, prior to the date hereofClosing, and (C) dispositions of obsolete or worn-out IT Assets;
(xii) make any changes to how the Company Processes Personal Information, other than non-material changes made in the ordinary course of business consistent with past practice;
(xiii) make any acquisitions of (including by merger, consolidation or acquisition of stock or assets use all or any other business combination) assets, any corporation, partnership, other business organization or any division thereof or equity interests therein or a substantial portion of available cash or cash equivalents to, prior to the assets thereof;
(xiv) payClosing, discharge, settle or compromise any pending or threatened Action which (A) requires payment repay any Indebtedness of the Acquired Companies or (B) declare and pay cash dividends with respect to or by the Company (exclusive capital stock of attorneys’ fees) in excess of $20,000 in any single instance or in excess of $200,000 in the aggregate (other than ordinary course payments or settlements under insurance or reinsurance Contracts that are within the applicable policy limits under such insurance or reinsurance Contract) orAcquired Companies.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) During From the period from Agreement Date through the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIIClosing Date, except (i) as required by applicable Law, (ii) as instructed or required by a Governmental Authority, (iii) as expressly required or contemplated by the terms of this Agreement, or (iv) to the extent Purchaser otherwise provides its prior consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), Parent and Seller shall cause the Company to comply with this Agreement, and otherwise ensure that (x) the Company shall conduct its business (and the Sellers shall cause the Company to conduct its business) in the ordinary course of business. Without limiting the generality of the preceding sentence, the Company shall not (and the Sellers shall not permit the Company to) directly or indirectly, without the prior written consent of the Purchaser Group: (a) incur any Liability, other than current Liabilities incurred in the ordinary and usual course of business and in amounts and of a type reasonably consistent with the Company's prior experience, or pay any Liability other than such current Liabilities and current maturities of existing long-term debt to non-Affiliated Lenders; (b) assume, guarantee, endorse (except for checks endorsed in the ordinary course business) or otherwise become responsible for the Liabilities of, or make any loans or advances to, any Person; (c) issue, grant, sell or otherwise dispose of any security of the Company, including any option, warrant or common stock or any other equity or debt security; (d) declare, set aside or pay any dividend (whether in cash, capital stock or property) with respect to its capital stock, or otherwise declare or make any distribution on (including to directly or indirectly redeem, purchase or otherwise acquire) any shares of capital stock; (e) create or permit any Encumbrance on any asset or property of the Company or the Shares; (f) except in the ordinary course of business reasonably consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to preserve its business organization intact and maintain existing relations and goodwill with Governmental Authorities, rating agencies, customers, reinsurers, producers, insureds, suppliers, service providers and employees, and (y) except as set forth in Section 5.01(a) of the Parent Disclosure Schedule, the Company shall not (it being understood that no act or omission with respect to the matters specifically addressed by any provision of this clause (y) shall be deemed to be a breach of clause (x)):
(i) (A) authorize for issuance, issuepractice, sell, grant lease, transfer or subject to dispose of any Lien any shares of capital stock, asset or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants or options to purchase any shares of capital stock or (B) redeem, purchase or otherwise acquire any of its shares of capital stock, or any rights, warrants or options to acquire any shares of capital stock;
(ii) split, combine, subdivide, reclassify, redeem, purchase or otherwise acquire, directly or indirectly, any shares of capital stock;
(iii) other than this Agreement and any Ancillary Agreements, adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization property of the Company;
, waive or release any rights of value, or cancel, compromise, release or assign any indebtedness owed to it or any claims held by it; (ivg) (A) except for the payment of the Closing Dividend, declare, make, set aside, authorize or pay any dividends or make any distribution with respect to its outstanding shares investment of a capital stock (whether in cash, assets, nature either by purchase of stock or other securities securities, contributions to capital, asset transfers or otherwise) or (B) incur, issue, assume, guarantee or otherwise become liable for any Indebtedness (other than (1) all obligations with respect to the net current Tax liabilities of the Company that are allocable to any taxable year (or portion thereof) ending on (and including), or prior to, the Closing Date (treating for purposes of this Agreement the taxable year of the Company that includes the Closing Date as closing on (and including) the Closing Date); (2) all Liabilities with respect to accrued but unpaid bonus payments, accrued or owed by the Company as of the Closing in respect purchase of any performance period (or portion thereof) prior to and up to the Closing, together with the employer portion assets of any Taxes arising therefrom; and (3) all Liabilities with respect to accrued but unused vacation timePerson, flexible time-off and sick pay to which any Business Employee is entitled pursuant to or authorize the policies applicable to such Business Employee immediately prior to the Closing) creation or issuance of or issue or sell any debt securities or warrants give any Person any right to acquire from it any securities; (h) enter into or terminate any Material Contract, or make any change in any Material Contract; (i) pay or agree to pay any increase in Employee compensation, commission rate, any bonus or pension or retirement allowance not required by any existing plan or Contract to any employees, or commit itself to or enter into any employment agreement or any incentive compensation, deferred compensation, profit sharing, stock option, stock purchase, savings, consultant, retirement, pension or other rights "fringe benefit" plan or arrangement with or for the benefit of any officer, employee or other Person or enter into any arrangement with or make any payment to acquire any debt security of the Company;
(v) amend, restate, supplement or otherwise modify its Organizational Documents;
(vi) (A) Affiliate other than payments of salary in the ordinary course of business in amounts consistent with past prior practice; (j) permit any insurance policy naming it as beneficiary or a loss payee to be cancelled or terminated or any of the coverage thereunder to lapse, amend, modify, extend, cancel, rescind, waive any rights under, assign, fail unless simultaneously with such termination or cancellation replacement policies providing substantially the same coverage are in full force and effect and issued by insurers who have a rating by A.M. Best similar to renew such existing insurer; (k) amend its articles of incorporation or terminate any operating leases or subleases by-laws in a manner which would have a materially adverse effect on the Purchasers; (or group of related operating leases or subleases with respect to a single transaction or series of related transactions) under which the Company leases or occupies Leased Real Property or (Bl) enter into any new operating leases or subleases (or group of related operating leases or subleases with respect Contract to a single transaction or series of related transactions) for leased real property;
(vii) sell, lease, license or otherwise dispose of do any of its material properties the things described in clauses (a) through (k) or (m) enter into in any Contract or other than Intellectual Property), rights, licenses, operations, product lines, businesses or assets with a purchase price for such material properties, rights, licenses, operations, product lines, businesses or assets, except (A) sales transaction which would knowingly make the representations and licenses of products and services warranties contained in Section 4 incorrect as of the Company in the ordinary course of business consistent with past practice, (B) sales and dispositions of investment assets by the Company in the ordinary course of business consistent with past practice, (C) pursuant to any insurance or reinsurance Contracts in the ordinary course of business consistent with past practice or (D) pursuant to Material Contracts in force on the date hereof;
(viii) make any loan, advance, guarantee or capital contribution to or investment in any Person, except advances to employees for expenses not to exceed $1,000 in any single instance or in excess of $20,000 in the aggregate in the ordinary course of business consistent with past practice;
(ix) engage in any transactions with respect to investment assets by the Company outside the ordinary course of business consistent with past practice, other than with respect to the liquidation of investment assets pursuant to Section 5.14 or to the extent otherwise agreed by Purchaser in writing as to any particular investment asset;
(x) make or authorize any capital expenditures in excess of $2,500 in any single instance or in excess of $50,000 in the aggregate during any twelve (12) month period;
(xi) sell, transfer, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any material Company Intellectual Property or material Company IT Assets, other than (A) in the ordinary course of business consistent with past practice, (B) pursuant to Contracts in force on the date hereof and made available to Purchaser on or prior to the date hereof, and (C) dispositions of obsolete or worn-out IT Assets;
(xii) make any changes to how the Company Processes Personal Information, other than non-material changes made in the ordinary course of business consistent with past practice;
(xiii) make any acquisitions of (including by merger, consolidation or acquisition of stock or assets or any other business combination) assets, any corporation, partnership, other business organization or any division thereof or equity interests therein or a substantial portion of the assets thereof;
(xiv) pay, discharge, settle or compromise any pending or threatened Action which (A) requires payment to or by the Company (exclusive of attorneys’ fees) in excess of $20,000 in any single instance or in excess of $200,000 in the aggregate (other than ordinary course payments or settlements under insurance or reinsurance Contracts that are within the applicable policy limits under such insurance or reinsurance Contract) orClosing Date.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) During the period from the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIIExcept (I) as set forth on Schedule 7.1, except (iII) as required by applicable Law, (iiIII) as instructed or required by a Governmental Authority, (iii) as expressly required or otherwise contemplated by the terms of this Agreement, Agreement or (ivIV) to with the extent Purchaser otherwise provides its prior written consent in writing of the Purchasers (such which consent shall not to be unreasonably withheld, delayed or conditioned), the Seller Parent and the Seller shall cause the Company to comply with this Agreement, and otherwise ensure that (x) the Company shall conduct its business in the ordinary course of business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to preserve its business organization intact and maintain existing relations and goodwill with Governmental Authorities, rating agencies, customers, reinsurers, producers, insureds, suppliers, service providers and employees, and (y) except as set forth in Section 5.01(a) of the Parent Disclosure Schedule, the Company shall Companies not (it being understood that no act or omission with respect to the matters specifically addressed by any provision of this clause (y) shall be deemed to be a breach of clause (x)):to:
(i) (A) authorize for issuance, issue, sell, grant transfer or encumber any Equity Interests;
(ii) increase the benefits, compensation, bonus or bonus opportunity of any employee, officer or director of any Company other than in the Ordinary Course of Business;
(iii) cancel or compromise any debt or claim or amend, cancel, terminate, relinquish, waive or release any Material Contract or right except in the Ordinary Course of Business;
(iv) mortgage, pledge or subject to any Lien any shares of capital stock, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants or options to purchase any shares of capital stock or (Bother than Permitted Exceptions) redeem, purchase or otherwise acquire any of its shares of capital stock, or any rights, warrants or options to acquire any shares of capital stock;
(ii) split, combine, subdivide, reclassify, redeem, purchase or otherwise acquire, directly or indirectly, any shares of capital stock;
(iii) other than this Agreement and any Ancillary Agreements, adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company;
(iv) (A) except for the payment of the Closing Dividend, declare, make, set aside, authorize or pay any dividends or make any distribution with respect to its outstanding shares of capital stock (whether in cash, material assets, stock or other securities or otherwise) or (B) incur, issue, assume, guarantee or otherwise become liable for any Indebtedness (other than (1) all obligations with respect to the net current Tax liabilities of the Company that are allocable to any taxable year (or portion thereof) ending on (and including), or prior to, the Closing Date (treating for purposes of this Agreement the taxable year of the Company that includes the Closing Date as closing on (and including) the Closing Date); (2) all Liabilities with respect to accrued but unpaid bonus payments, accrued or owed by the Company as of the Closing in respect of any performance period (or portion thereof) prior to and up to the Closing, together with the employer portion of any Taxes arising therefrom; and (3) all Liabilities with respect to accrued but unused vacation time, flexible time-off and sick pay to which any Business Employee is entitled pursuant to the policies applicable to such Business Employee immediately prior to the Closing) or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company;
(v) amendacquire any material asset or sell, restateassign, supplement transfer, convey, lease or otherwise modify its Organizational Documentsdispose of any material assets of any Company except for such assets acquired, sold, assigned, transferred conveyed, leased or otherwise disposed of in the Ordinary Course of Business;
(vi) (A) other than in the ordinary course this Agreement, not issue, sell or otherwise dispose of, any equity interests or any other security of business consistent with past practiceany Company or grant any option, amend, modify, extend, cancel, rescind, waive warrant or other right to subscribe for or to purchase any rights under, assign, fail to renew capital stock or terminate any operating leases or subleases (or group equity interests of related operating leases or subleases with respect to a single transaction or series of related transactions) under which the Company leases or occupies Leased Real Property or (B) enter into any new operating leases or subleases (or group of related operating leases or subleases with respect to a single transaction or series of related transactions) for leased real propertyCompany;
(vii) sell, lease, license or otherwise dispose of any of its material properties (other than Intellectual Property), rights, licenses, operations, product lines, businesses or assets with a purchase price for such material properties, rights, licenses, operations, product lines, businesses or assets, except (A) sales and licenses of products and services of the Company in the ordinary course of business consistent with past practice, (B) sales and dispositions of investment assets by the Company in the ordinary course of business consistent with past practice, (C) pursuant obligate itself to any insurance or reinsurance Contracts in the ordinary course of business consistent with past practice or (D) pursuant to Material Contracts in force on the date hereof;
(viii) make any loan, advance, guarantee or capital contribution to or investment in any Person, except advances to employees for expenses not to exceed $1,000 in any single instance or in excess of $20,000 in the aggregate in the ordinary course of business consistent with past practice;
(ix) engage in any transactions with respect to investment assets by the Company outside the ordinary course of business consistent with past practice, other than with respect to the liquidation of investment assets pursuant to Section 5.14 or to the extent otherwise agreed by Purchaser in writing as to any particular investment asset;
(x) make or authorize any capital expenditures in excess of $2,500 in any single instance or pay in excess of $50,000 in the aggregate during to purchase any twelve new fixed assets (12) month periodother than replacements);
(xiviii) sellenter into, transfer, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon modify or allow to lapse terminate any labor or expire or otherwise dispose collective bargaining agreement of any material Company Intellectual Property or material Company IT Assets, other than (A) in the ordinary course of business consistent with past practice, (B) pursuant to Contracts in force on the date hereof and made available to Purchaser on or prior to the date hereof, and (C) dispositions of obsolete or worn-out IT AssetsCompany;
(xiiix) make enter into or agree to enter into any changes to how the Company Processes Personal Information, other than non-material changes made in the ordinary course of business consistent merger or consolidation with past practiceany Person;
(xiiix) make or rescind any acquisitions of (including by merger, consolidation or acquisition of stock or assets or any other business combination) assets, any corporation, partnership, other business organization or any division thereof or equity interests therein or a substantial portion of the assets thereof;
(xiv) pay, dischargematerial election relating to Taxes, settle or compromise any pending claim, action, suit, litigation, proceeding, arbitration, investigation, audit controversy relating to Taxes, or threatened Action which (A) requires payment except as required by applicable law or GAAP, make any material change to any of its methods of accounting or by the Company (exclusive methods of attorneys’ fees) in excess of $20,000 in any single instance reporting income or in excess of $200,000 deductions for Tax or accounting practice or policy from those employed in the aggregate preparation of its most recent Tax Return; or
(other than ordinary course payments or settlements under insurance or reinsurance Contracts that are within the applicable policy limits under such insurance or reinsurance Contractxi) oragree to do anything prohibited by this Section 7.1.
Appears in 1 contract
