Conduct of the Business Prior to the Closing Date. (a) Except as permitted, required or specifically contemplated by this Agreement, including those actions contemplated in Section 5.2 of the Company Disclosure Schedule or in this Article V, or as required by a Governmental Authority of competent jurisdiction or by applicable Law, during the period commencing on the date hereof and ending on the Closing Date, the Company shall operate the Business in the ordinary course of business and consistent with past practice in all material respects, including: (i) using reasonable best efforts to (A) preserve intact the present business of the Business, (B) maintain the Tangible Acquired Assets in good operating condition and repair to permit their use in the continuing operation of the Business, ordinary wear and tear excepted, (C) maintain the goodwill of customers, suppliers and other Persons with whom the Company otherwise has significant business relationships in connection with the Business and (D) continue in all material respects the current sales, marketing and promotional activities relating to the Business; (ii) causing the Books and Records to be maintained in the usual, regular and ordinary manner; and (iii) complying in all material respects with all Laws applicable to the Business and promptly following receipt thereof give to Buyer copies of any notice received from any Governmental Authority or other Person alleging any material violation of any such Laws. (b) Without limiting the generality of clause (a) above and subject to the exceptions therein, the Company shall not do any of the following with respect to the Business, the Acquired Assets or the Assumed Liabilities, unless approved or consented to in writing by Buyer, which consent shall not be unreasonably withheld or delayed: (i) other than in the ordinary course of business and consistent with past practice, (A) acquire any assets that would be included in the Acquired Assets for a value in excess of $50,000, (B) dispose of any Acquired Assets with a value in excess of $50,000 or (C) incur any indebtedness for borrowed money that would be included in the Assumed Liabilities, issue any debt securities or assume or guarantee the obligations of any other Person, or make any loans or advances, in each case that would be included in the Assumed Liabilities; (ii) to the extent related to the Business, increase or pay any payment or benefit not required by any existing Benefit Plan or increase any salaries or wages of the Business Employees, other than (A) in the ordinary course of business, (B) as may be required by a Governmental Authority, works council agreement or applicable Law, or (C) in accordance with regularly scheduled periodic increases or payments; (iii) enter into, modify, terminate (except in accordance with its terms) or renew (except in accordance with its terms) any Assumed Contract or Lease, except in the ordinary course of business; (iv) permit any Acquired Asset to become subject to any Lien (except for Permitted Liens) unless such Lien is released upon or prior to Closing; (v) enter into or offer to enter into any employment or consulting agreement with any person who is or would become a Business Employee; (vi) except as contemplated by Section 2.1, issue any shares of capital stock or rights to purchase the capital stock of any Transferred Subsidiaries; (vii) transfer or grant any material right under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property used in the Business, or modify any existing right with respect thereto; (viii) grant or extend any power of attorney relating to the Business; (ix) enter into or amend any collective bargaining or union contract or other agreement covering the Business Employees; (x) institute, settle or agree to settle any Proceeding before any Governmental Authority that creates or imposes any material continuing obligation or restriction on the Business or the Acquired Assets; (xi) modify, change or otherwise alter in any material respect the fundamental nature of the Business as presently conducted; (xii) make or permit any material change to its accounting methods or principles, except as required by GAAP or as would affect solely the Technology Business; or (xiii) otherwise commit to do, or take any action or omit to take any action that would result in, any of the foregoing.
Appears in 1 contract
Samples: Purchase Agreement (Synavant Inc)
Conduct of the Business Prior to the Closing Date. (a) Except as permitted, required or specifically otherwise contemplated by this Agreement, including those actions contemplated Agreement or as disclosed in Section Schedule 5.2 or in respect of the Company Disclosure Schedule operations or assets conducted or located at the Parcel in this Article VBillings, Montana, or as required by a Governmental Authority of competent jurisdiction or by applicable Lawlaw, during rule or regulation, the period commencing on Seller covenants that until the date hereof Closing it will, and ending on it will cause the Sold Companies and the Subsidiaries (and shall use all commercially reasonable efforts to cause all Venture Entities) to, use all commercially reasonable efforts, in a manner consistent with past practices, to maintain and preserve intact the business of the Sold Companies, Subsidiaries and the Venture Entities and to maintain the ordinary and customary relationships of the Sold Companies, Subsidiaries and the Venture Entities with their respective suppliers, customers and others having business relationships with them; provided, however, that, subject to Section 5.18, nothing contained in this Agreement shall prevent the removal by the Seller of Cash from any of the Sold Companies or the Subsidiaries consistent with past cash management practices. Until the Closing Date, (a) the Company Seller shall, and shall cause the Sold Companies and the Subsidiaries (and shall use all commercially reasonable efforts to cause all other Venture Entities) to, continue to operate and conduct the Business business of the Sold Companies, the Venture Entities and Subsidiaries in the ordinary course course, and maintain the books and records of business the Sold Companies, the Venture Entities and consistent the Subsidiaries in accordance with past practice in all material respects, including:
(i) using reasonable best efforts to (A) preserve intact the present business of the Business, (B) maintain the Tangible Acquired Assets in good operating condition practices and repair to permit their use in the continuing operation of the Business, ordinary wear and tear excepted, (C) maintain the goodwill of customers, suppliers and other Persons with whom the Company otherwise has significant business relationships in connection with the Business and (D) continue in all material respects the current sales, marketing and promotional activities relating to the Business;
(ii) causing the Books and Records to be maintained in the usual, regular and ordinary manner; and
(iii) complying in all material respects with all Laws applicable to the Business and promptly following receipt thereof give to Buyer copies of any notice received from any Governmental Authority or other Person alleging any material violation of any such Laws.
(b) Without limiting the generality of clause Seller shall not, and shall cause the Sold Companies and the Subsidiaries (aand shall use all commercially reasonable efforts to cause all other Venture Entities) above and subject to not to, without the exceptions therein, the Company shall not do any prior written approval of the following with respect to the Business, the Acquired Assets or the Assumed Liabilities, unless approved or consented to in writing by Buyer, which consent shall not be unreasonably withheld withheld, conditioned or delayed:, or as otherwise contemplated or permitted by this Agreement or Schedule 5.2, take any of the following actions with respect to any of the Sold Companies, the Venture Entities and the Subsidiaries.
(a) amend its charter or by-laws (or analogous governing or organizational documents), or issue or agree to issue any additional shares of capital stock, any voting securities or equity equivalent of any class or series, or any securities convertible into or exchangeable for shares of capital stock, voting securities or equity equivalent, or issue any options, warrants or other rights to acquire any shares of capital stock or such securities;
(b) sell, transfer or otherwise dispose of or encumber or subject to any Liens (other than Permitted Liens) any of its properties or assets other than (i) in the ordinary course of business, (ii) any property or asset which is not material to the Petcoke Business or the Metals Business, as the case may be, (iii) in any disposition between any of the Sold Companies and the Subsidiaries and (iv) in the case of any sale, transfer or other than dispositions only, if equivalent value is received therefor;
(c) grant any increase in the compensation of officers or employees, except for increases (i) in the ordinary course of business and consistent with past practice, and which in any event do not exceed for any person the greater of 6% of such person’s current salary or $5,000 per annum; (Aii) acquire as required under any assets that would be included collective bargaining agreement; (iii) as required by any Benefit Plan, or other agreement, policy or arrangement in effect as of the Acquired Assets for a value in excess date of $50,000, (B) dispose of any Acquired Assets with a value in excess of $50,000 this Agreement and disclosed hereunder or (Civ) incur any indebtedness for borrowed money that would be included in the Assumed Liabilities, issue any debt securities or assume or guarantee the obligations of any other Person, or make any loans or advances, in each case that would be included in the Assumed Liabilitiesas required by law;
(iid) to the extent related to the Business, increase make any capital expenditure or pay any payment or benefit not required by any existing Benefit Plan or increase any salaries or wages of the Business Employeescommitment, other than (Ai) in the ordinary course of business, (B) as may be required by a Governmental Authority, works council agreement business and which do not exceed $250,000 individually or applicable Law, or (C) $1,000,000 in accordance with regularly scheduled periodic increases or paymentsthe aggregate;
(iiie) enter into, modify, terminate (except in accordance with its terms) or renew (except in accordance with its terms) any Assumed Contract or Lease, except respect to the endorsement of negotiable instruments in the ordinary course of its business, incur, assume or guarantee any indebtedness for borrowed money other than (i) purchase money borrowings; (ii) refundings of any existing indebtedness which is reflected in the Conclusive Net Working Capital Statement; and (iii) indebtedness to one of the Sold Companies or the Subsidiaries;
(ivf) permit any Acquired Asset to become issue, deliver, sell, pledge, redeem, dispose of or subject to any Lien (except for Permitted Liens) unless any of the Shares or Venture Interests or any other voting securities or equity equivalent or any interest or securities convertible into, or any rights, warrants or options to acquire, any such Lien is released upon Shares or prior to ClosingVenture Interests, voting securities or convertible securities or equity equivalent;
(vg) change its accounting methods or practices (including any change in depreciation or amortization policies or rates thereof) except as mandated by GAAP;
(h) make any Tax election, change any annual Tax accounting period, amend any Tax Return, settle or compromise any material income Tax liability, enter into any closing agreement, settle any Tax claim or assessment with respect to any material Tax, surrender any right to claim a material Tax refund or consent to an extension or waiver of the limitations period applicable to any Tax claim or assessment; provided, however, that notwithstanding the foregoing, the Seller shall have the right in its sole discretion to settle the California income Tax audit of AIMCOR DE for years May 1999 – December 2000, the Texas income Tax audit of AIMCOR DE for years May 1999 – December 2001 and the Masterloy Canadian federal income Tax audit for 2000, 2001 and 2002, and shall have the right to amend the corresponding Tax Returns in accordance with such settlements;
(i) enter into any contract or offer to enter into any employment commitment for purchases or consulting agreement sales other than a contract or commitment which is in the ordinary course of its business and is on commercially reasonable terms and conditions, based on those business and financial terms and conditions then available in comparable bona fide arms-length transactions with any person who is or would become a Business Employeenon-affiliated persons;
(vij) except as contemplated by Section 2.1, issue prepay any shares material obligations other than in the ordinary course of capital stock or rights to purchase the capital stock of any Transferred Subsidiariesbusiness consistent with past practice;
(viik) transfer declare, set aside, make or grant pay any material right under, dividend or enter into any settlement regarding the breach other distribution payable in stock or infringement of, any material Intellectual Property used in the Business, or modify any existing right property with respect theretoto the Shares;
(viiil) grant waive or extend release any power rights of attorney relating material value, or cancel, compromise, release or assign any material indebtedness owed to the Businessit or any material claims held by it;
(ixm) cancel or terminate any insurance policy naming it as a beneficiary or a loss payable payee;
(n) enter into or amend any collective bargaining or union contract or other agreement covering the Business Employees;
(x) institute, settle or agree to settle any Proceeding before any Governmental Authority that creates or imposes any material continuing obligation or restriction on the Business or the Acquired Assets;
(xi) modify, change or otherwise alter in any material respect the fundamental nature of the Business as presently conducted;
(xii) make or permit any material change to its accounting methods or principlesemployment agreement, except as required by GAAP applicable law;
(o) adopt or vote in favor of a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any of the Sold Companies, the Venture Entities or the Subsidiaries;
(p) purchase assets (other than purchases of inventory and capital expenditures, each in the ordinary course of business) or equity securities of any person, or merge or consolidate with any person;
(q) amend, modify or adopt any Benefit Plan, except as required to comply with any applicable law, or adopt, whether formally or informally, or ratify any plan, arrangement, understanding, policy or program which would affect solely the Technology Businessconstitute a Benefit Plan; or
(xiiir) otherwise commit agree, whether in writing or otherwise, to do, or take any action or omit to take any action that would result in, do any of the foregoing.
Appears in 1 contract
Samples: Purchase Agreement and Plan of Merger (Walter Industries Inc /New/)
Conduct of the Business Prior to the Closing Date. (a) Except as permitted, required or specifically otherwise contemplated by this Agreement, including those actions contemplated Agreement or as disclosed in Section 5.2 5.1(a) of the Company Disclosure Schedule or in this Article VSchedule, or as required by a Governmental Authority of competent jurisdiction or by applicable Lawlaw, during rule or regulation, the period commencing on the date hereof and ending on Sellers covenant that until the Closing Datethey will, and will cause the Company shall operate the Business in the ordinary course of business Companies to use all reasonable efforts to, maintain and consistent with past practice in all material respects, including:
(i) using reasonable best efforts to (A) preserve intact the present business of the Business, (B) maintain the Tangible Acquired Assets in good operating condition and repair to permit their use in the continuing operation of the Business, ordinary wear and tear excepted, (C) maintain the goodwill of customers, suppliers and other Persons with whom the Company otherwise has significant business relationships in connection with the Business and (D) continue in all material respects and use all reasonable efforts to maintain the current salesordinary and customary relationships of the Companies with their respective licensees, marketing employees, vendors and promotional activities relating to the Business;
(ii) causing the Books and Records to be maintained in the usual, regular and ordinary manner; and
(iii) complying in all material respects others having business relationships with all Laws applicable to the Business and promptly following receipt thereof give to Buyer copies of any notice received from any Governmental Authority or other Person alleging any material violation of any such Laws.
(b) them. Without limiting the generality of clause the foregoing, from the date hereof until the Closing Date, (ax) above and subject to the exceptions therein, the Company Sellers shall not do any cause each of the following Companies to continue to operate and conduct the business of the Companies only in the ordinary course consistent with respect to past practice and (y) the BusinessSellers shall cause each of the Companies not to, without the Acquired Assets or the Assumed Liabilities, unless approved or consented to in writing by Buyerprior written consent of Purchaser, which consent shall not be unreasonably withheld or delayed, or as otherwise contemplated by this Agreement or specifically set forth in Section 5.1(a) of the Disclosure Schedule, take any of the following actions:
(i) amend its Charter Documents, or issue or agree to issue any additional shares of capital stock of any class or series, or any securities convertible into or exchangeable for shares of capital stock, or issue any options, warrants or other than in the ordinary course of business and consistent with past practice, (A) rights to acquire any assets that would be included in the Acquired Assets for a value in excess shares of $50,000, (B) dispose of any Acquired Assets with a value in excess of $50,000 or (C) incur any indebtedness for borrowed money that would be included in the Assumed Liabilities, issue any debt securities or assume or guarantee the obligations of any other Person, or make any loans or advances, in each case that would be included in the Assumed Liabilitiescapital stock;
(ii) sell, transfer or otherwise dispose of or cause to the extent related be subject to the Business, increase any Encumbrance any of its properties or pay any payment or benefit not required by any existing Benefit Plan or increase any salaries or wages of the Business Employees, assets other than (A) in the ordinary course of business, (B) as may be required by a Governmental Authority, works council agreement or applicable Law, or any disposition between any of the Companies and (C) the transfer of the assets contemplated by Section 5.2; provided, however, in accordance with regularly scheduled periodic increases no event shall any of the Arrow Intellectual Property or paymentsArrow Licenses be sold, transferred or otherwise disposed of or caused to be subject to any Encumbrance;
(iii) amend any Arrow License or enter into, modify, terminate (except into any Contract that would be an Arrow License if in accordance with its terms) or renew (except in accordance with its terms) any Assumed Contract or Lease, except in effect on the ordinary course of businessdate hereof;
(iv) permit incur, assume or guarantee any Acquired Asset to indebtedness for borrowed money or otherwise become subject to liable for any Lien (except for Permitted Liens) unless such Lien is released upon indebtedness or prior to Closingany obligations or Liabilities of any other Person;
(v) enter into merge or offer to enter into any employment or consulting agreement consolidate with any person who is other Person, or would become a Business Employeeacquire capital stock or assets of any other Person;
(vi) make, change or amend any material Tax election, settle or compromise any material liability for Taxes, file any material amended Tax Return, or make or surrender any claim for a material amount of Taxes, except as contemplated with respect to actions taken by Section 2.1, issue any shares the parent of capital stock or rights the consolidated group of which the Companies are members and provided that such actions do not relate specifically to purchase the capital stock of any Transferred SubsidiariesCompanies;
(vii) transfer (A) split, combine or grant reclassify any material right under, of its interest or enter into shares of its capital stock or (B) amend the terms of any settlement regarding the breach or infringement of, any material Intellectual Property used in the Business, or modify any existing right with respect theretoof its outstanding securities;
(viii) grant enter into or extend amend any power employment, severance, special pay arrangement with respect to termination or employment or other similar arrangements or agreements with any directors, executive officers or Employees to which any of attorney relating to the BusinessCompanies or any of their Subsidiaries is a party or is otherwise liable;
(ix) enter into any Contract other than in the ordinary course of business consistent with past practice, which (A) has a term of more than one year after the Closing or amend which would reasonably be expected to generate more than, if the Closing shall have occurred on or prior to December 31, 2004, $20,000 in revenues, or if the Closing shall have occurred after December 31, 2004, $100,000 in revenues, or in either case, involve payments of more than $20,000 over its term, or (B) which materially limits or otherwise restricts the business of any collective bargaining of the Companies (or union contract which could, after the Closing, limit or other restrict the ability of Purchaser to conduct the Business); provided, however, that the provisions of this Section 5.1(a)(ix) shall not apply to the termination agreement covering entered into regarding the Business EmployeesXxxxxxxx Agent Agreement pursuant to Section 5.15;
(x) institute, settle or agree to settle enter into any Proceeding before any Governmental Authority that creates or imposes any material continuing obligation or restriction on the Business or the Acquired AssetsMaterial Contract;
(xi) modify, change adopt a plan of complete or otherwise alter in any material respect the fundamental nature of the Business as presently conductedpartial liquidation or dissolution;
(xii) make change or permit any material change modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to its accounting methods pay or principles, except as required by GAAP delay payment of payables or as would affect solely the Technology Businessother liabilities; or
(xiii) otherwise commit agree, whether in writing or otherwise, to do, or take any action or omit to take any action that would result in, do any of the foregoing.
(b) Except as contemplated by this Agreement, the Sellers covenant that they will not sell, transfer or otherwise dispose of or cause to be subject to any "adverse claim" (within the meaning of Section 8-102(a)(1) of the UCC) in any way the Shares.
Appears in 1 contract
Conduct of the Business Prior to the Closing Date. (a) Except as permitted, required or specifically contemplated by this Agreement, including those actions contemplated in Section 5.2 of the Company Disclosure Schedule or in this Article V, or as required by a Governmental Authority of competent jurisdiction or by applicable Law, during During the period commencing on the date hereof and ending on continuing until the Closing DateClosing, the Company agrees as to itself and its Subsidiaries that, except as expressly permitted or required by this Agreement, including pursuant to the Reorganization, or as set forth in Section 5.2(a) of the Company Disclosure Schedule, or to the extent that the Buyer shall operate otherwise consent in writing, the Company and its Subsidiaries shall carry on the Business only in the ordinary course of business and consistent with past practice in all material respectspractice, includingincluding using reasonable best efforts to:
(i) using reasonable best efforts preserve intact, protect and maintain the Business;
(ii) keep available and continue to provide all services currently provided to the Business;
(iii) (A) preserve intact maintain all rights, privileges, licenses and other authorizations (including all Intellectual Property) necessary or desirable for the present business operation of the Business, (B) keep available the services of the Business Employees, (C) maintain the Tangible Acquired Assets relationship with, and goodwill of, customers, suppliers, vendors, distributors and other Persons with whom the Company or any of its Subsidiaries otherwise has business relationships relating to the Business, (D) continue in all material respects the current sales, marketing and promotional activities relating to the Business, (E) keep and maintain the Transferred Assets, including the properties and assets of the Transferred Subsidiaries, in good operating condition and repair to permit their use in the continuing operation of the Business, ordinary wear and tear excepted, (CF) perform all of its obligations under the Contracts and the Leases included within the Transferred Assets in accordance with the terms thereof, and (G) maintain in place its insurance policies (or replacement policies in similar amounts and protecting against similar risks) as in effect as of the goodwill of customers, suppliers and other Persons with whom the Company otherwise has significant business relationships in connection with the Business and (D) continue in all material respects the current sales, marketing and promotional activities relating to the Businessdate hereof;
(iiiv) causing pay and discharge all Liabilities as they become due and all payables in the ordinary course of business and in the same manner as previously paid (subject to the Company’s ability to pursue in good faith any bona fide disputes);
(v) cause the Books and Records to be maintained in the usual, regular and ordinary manner; and
(iiivi) complying comply in all material respects with all Laws applicable to the Business and and, promptly following receipt thereof thereof, give to the Buyer copies of any notice received from any Governmental Authority or other Person alleging any material violation of any such Laws.
(b) Without limiting the generality of clause (a) above and subject to (x) the exceptions thereintherein and in Section 5.2(b) of the Company Disclosure Schedule and (y) the Reorganization, from the date of this Agreement to the Closing, the Company shall not and shall not permit any of its Subsidiaries to do any of the following with respect to the Business, the Acquired Assets or the Assumed Liabilitiesfollowing, unless approved or consented to in writing by Buyer, the Buyer (which consent shall not be unreasonably withheld or delayed:):
(i) (A) acquire or agree to acquire by merging or consolidating with, by purchasing a substantial equity interest in or a substantial portion of the assets of, by forming a partnership or joint venture with, or by any other manner, any business or any corporation, partnership, association or other Person or business organization or division thereof, (B) otherwise acquire any property or assets (except as set forth in Section 5.2(b)(xviii) or (xxii)), or (C) make any investment, either by purchase of stock or securities, contribution to capital, property transfer or otherwise;
(ii) sell, lease, assign, transfer, license, sublicense, encumber or otherwise dispose of, in whole or in part, any of the Transferred Assets, other (A) than the property located at Tir-Y-Berth Industrial Estate, New Road, Hegoed, Wales, which sale shall take place only on a “VAT exclusive” basis to the extent lawful and (B) sales of Inventory in the ordinary course of business and consistent with past practice, (A) acquire any assets that would be included in the Acquired Assets for a value in excess of $50,000, (B) dispose of any Acquired Assets with a value in excess of $50,000 or (C) incur any indebtedness for borrowed money that would be included in the Assumed Liabilities, issue any debt securities or assume or guarantee the obligations of any other Person, or make any loans or advances, in each case that would be included in the Assumed Liabilities;
(ii) to the extent related to the Business, increase or pay any payment or benefit not required by any existing Benefit Plan or increase any salaries or wages of the Business Employees, other than (A) in the ordinary course of business, (B) as may be required by a Governmental Authority, works council agreement or applicable Law, or (C) in accordance with regularly scheduled periodic increases or payments;
(iii) enter into, into any new line of business or modify, terminate (except change or otherwise alter in accordance with its terms) or renew (except in accordance with its terms) any Assumed Contract or Lease, except in material respect the ordinary course fundamental nature of businessthe Business;
(iv) permit enter into, cancel, rescind, terminate, renew, assign or make any Acquired Asset to become subject material change to any Contract, other than the expiration of a Contract in accordance with its terms as of the date hereof;
(v) enter into any Contract that limits or otherwise restricts the Company or any of its Subsidiaries or Affiliates (or any successors thereto) or that by its terms could, after the Closing, limit or restrict the Buyer or any of their respective Subsidiaries or Affiliates (or any successors thereto), from engaging or competing in any line of business or in any geographic area, or require referrals of any business or require the Company or any of its Subsidiaries or Affiliates to make available any investment opportunities to any Person on a priority, equal or exclusive basis;
(vi) make any prepayment or other payment on or in respect of any Liabilities of the Business unless required by the terms thereof on the date of this Agreement, or incur, create or assume any indebtedness or Liabilities for borrowed money or guarantee any such obligation or issue or sell any debt securities or warrants or enter into any “keepwell” or other similar arrangements which would constitute an Assumed Liability;
(vii) incur, create, assume or suffer to exist any Lien on any Transferred Asset (except for Permitted Liens) unless such Lien is released upon or prior to Closing;
(vviii) except as required by any applicable Law, Governmental Authority or any Company Plan: (A) increase the compensation or benefits of any present or former director, officer, employee, consultant or independent contractor of the Business, (B) loan or advance any money or other property, or make any payment or distribution of any compensation, to any present or former director, officer, employee, consultant or independent contractor of the Business, (C) establish, adopt, enter into into, amend or offer to enter into terminate any employment Company Plan or consulting any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Plan if it were in existence as of the date of this Agreement, (D) grant any severance or termination pay, other than in accordance with the terms of any agreement with in effect as of the date hereof, or (E) grant any person who is equity or would become a Business Employeeequity-based awards in any of the Transferred Subsidiaries;
(viix) terminate any Business Employees (except as contemplated by Section 2.1provided for in the Reorganization or for cause) or hire any new Business Employees;
(x) issue, issue deliver, sell, pledge or transfer or authorize or propose the issuance, delivery, sale, pledge or transfer of, any shares of capital stock or rights to purchase the capital stock of any of the Transferred Subsidiaries, any Voting Debt or any securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any such shares or Voting Debt, or enter into any agreement with respect to any of the foregoing;
(viixi) transfer other than cash dividends, (A) declare or pay any dividends on or make other distributions (whether in cash, stock or property or any combination thereof) in respect of any of the capital stock of the Transferred Subsidiaries, (B) split, combine or reclassify any of the capital stock of the Transferred Subsidiaries, or (C) repurchase, redeem or otherwise acquire, or permit the Subsidiaries to purchase, redeem or otherwise acquire, any shares of the capital stock of the Transferred Subsidiaries or any securities convertible into or exercisable or exchangeable for any shares of the capital stock of the Transferred Subsidiaries; provided, however, that no cash dividends may be paid which would result in the Transferred Subsidiary having less than $300,000 in cash or cash equivalents as of the Closing Date;
(xii) transfer, abandon or grant any material right under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property owned by or used or held for use in the conduct or operation of the Business, or modify any existing right with respect thereto, except to the extent that the Company’s sale or disposition of Inventory in the ordinary course of business consistent with past practice constitutes the grant of an implied license or an exhaustion of remedies under the Intellectual Property;
(viii) grant or extend any power of attorney relating to the Business;
(ixxiii) enter into or amend any collective bargaining agreement or union contract or other agreement covering the Business EmployeesEmployees or enter into any negotiations for the purposes of entering into any such agreement, except as required by applicable Law, Governmental Authority or any Company Plan;
(xxiv) effectuate a “plant closing,” “mass layoff” or other similar triggering event as those terms are defined in WARN or any other applicable Law, affecting in whole or in part any site of employment, facility, operating unit or employee of the Business or any of the Transferred Subsidiaries;
(xv) (A) institute, settle or agree to settle any Proceeding by or before any Governmental Authority that creates or imposes any material continuing obligation or restriction on the Business or would otherwise constitute an Assumed Liability or (B) waive, release or relinquish any material claims or rights relating to the Acquired Business or the Transferred Assets;
(xixvi) modifyamend or propose to amend the certificate of incorporation, change by-laws, articles of association, memorandum of association or otherwise alter in any material respect the fundamental nature other organizational documents of the Business as presently conductedTransferred Subsidiaries or enter into, or permit any of the Transferred Subsidiaries to enter into a reduction of capital, a plan of consolidation, a scheme of arrangement, merger or reorganization with any Person;
(xiixvii) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or reorganization or resolutions providing for or authorizing the foregoing, other than the Reorganization or a plan of liquidation pursuant to which no formal actions are taken in furtherance of the implementation or completion of such liquidation, other than the approval of such plan, prior to the Closing Date;
(xviii) incur any capital expenditures in excess of $5,000 individually or $50,000 in the aggregate relating to the Business;
(xix) make or permit any material change to its accounting methods or principles, except as required by changes in GAAP as concurred in by the Company’s independent auditors;
(xx) enter into any agreement with a Related Person relating to the Business;
(A) accelerate the delivery or sale of products or (B) offer discounts or price protection on the sale of products or premiums on the purchase of raw materials that are, in the case of this clause (B), greater on an absolute or proportionate basis than the Company’s past practice;
(xxii) (A) purchase, order or otherwise acquire Inventory unless such inventory is (1) necessary to meet a delivery obligation to a customer prior to the Closing Date or (2) necessary to meet a required customer support or service or (B) write down the value of any Inventory or Transferred Asset, except as would affect solely may be required by GAAP;
(xxiii) (A) make, rescind or change any Tax election, annual Tax accounting period or method of Tax accounting, (B) settle or compromise any Tax claim or assessment, (C) file any amended Tax Return or (D) surrender any right to claim a Tax refund, in each case, with respect to any of the Technology BusinessTransferred Subsidiaries;
(xxiv) amend, modify or alter the Rights Agreement, dated as of May 24, 2004, between the Company and U.S. Stock Transfer Corporation, as Rights Agent, or take any action to exempt any third Person from all or any provisions thereof; or
(xiiixxv) otherwise commit to do, or take any action or omit to take any action that would result in, any of the foregoing.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Argonaut Technologies Inc)
Conduct of the Business Prior to the Closing Date. (a) Except as permitted, required or specifically contemplated by this Agreement, including those actions contemplated in Section 5.2 6.2 of the Company Disclosure Schedule or in this Article VVI, or as required by a Governmental Authority of competent jurisdiction or by applicable Law, during the period commencing on the date hereof and ending on continuing until the Closing DateEffective Time, the Company shall and shall cause each of its Subsidiaries to operate the Business its business in the ordinary course of business and consistent with past practice in all material respects, including:
(i) using reasonable best efforts to (A) preserve intact the present business of the Businessbusiness, (B) maintain the Tangible Acquired Assets its assets in good operating condition and repair to permit their use in the continuing operation of the Businessbusiness, ordinary wear and tear excepted, (C) maintain the goodwill of customers, suppliers and other Persons with whom the Company and any of its Subsidiaries otherwise has significant business relationships in connection with the Business its business and (D) continue in all material respects the current sales, marketing and promotional activities relating to the Businessits business;
(ii) causing the Books and Records to be maintained in the usual, regular and ordinary manner; and
(iii) complying in all material respects with all Laws applicable to the Business its business and promptly following receipt thereof give to Buyer Parent copies of any notice received from any Governmental Authority or other Person alleging any material violation of any such Laws.
(b) Without limiting the generality of clause (a) above and subject to the exceptions therein, the Company shall not and shall not permit any of its Subsidiaries to do any of the following with respect to the Business, the Acquired Assets or the Assumed Liabilitiesfollowing, unless approved or consented to in writing by BuyerParent, which consent shall not be unreasonably withheld or delayed:
(i) other than in the ordinary course of business and consistent with past practice, (A) acquire any assets that would be included in the Acquired Assets for a value in excess of $50,000100,000, (B) dispose of any Acquired Assets assets with a value in excess of $50,000 100,000 or (C) incur any indebtedness for borrowed money that would be included in the Assumed Liabilitiesmoney, issue any debt securities or assume or guarantee the obligations of any other Person, or make any loans or advances, in each case that would be included in the Assumed Liabilities;
(ii) to the extent related to the Business, increase or pay any payment or benefit not required by any existing Benefit Plan or increase any salaries or wages of the Business Employees, other than (A) in the ordinary course of businessbusiness consistent with past practice, (B) as may be required by a Governmental Authority, works council agreement or applicable Law, or (C) in accordance with regularly scheduled periodic increases or payments;
(iii) enter into, modify, terminate (except in accordance with its terms) or renew (except in accordance with its terms) any Assumed material Contract or Lease, except in the ordinary course of business;
(iv) permit any Acquired Asset material asset to become subject to any Lien (except for Permitted Liens) unless such Lien is released upon or prior to Closing;
(v) enter into or offer to enter into any employment or consulting agreement with any person who is or would become a Business an Employee, except with respect to any promotion or new hiring of any Employee whose annual base salary is or will be less than $100,000 so long as such promotion or new hiring is consistent with past practice;
(vi) except as contemplated by Section 2.1, grant any severance or termination pay (other than pursuant to policies or agreements of the Company in effect on the date hereof);
(vii) issue any shares of capital stock or rights to purchase the capital stock of the Company or any Transferred of its Subsidiaries, except for (i) the issuance of Common Stock pursuant to stock options, stock appreciation or similar rights, as the case may be, under Benefit Plans or dividend reinvestment plans of the Company as in effect on the date hereof in the ordinary course of the operation of such plans, (ii) the issuance by a Subsidiary of shares of its capital stock to its parent and (iii) any issuance required under the Company Rights Plan; or;
(viiviii) transfer or grant any material right under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property used in the Businessbusiness of the Company or its Subsidiaries, or modify any existing right with respect thereto;
(viiiix) grant or extend any power of attorney relating to the Businessbusiness of the Company;
(ixx) enter into or amend any collective bargaining or union contract or other agreement covering the Business EmployeesEmployees except as required by any applicable Law, Governmental Authority or any Benefit Plan;
(xxi) institute, settle or agree to settle any Proceeding before any Governmental Authority that creates or imposes any material continuing obligation or restriction on the Business business of the Company or the Acquired Assetsits Subsidiaries;
(xixii) modify, change or otherwise alter in any material respect the fundamental nature of the Business business of the Company or its Subsidiaries as presently conducted;
(xiixiii) make or permit any material change to its accounting methods or principles, except as required by GAAP or as would affect solely the Technology BusinessGAAP; or
(xiiixiv) otherwise commit to do, or take any action or omit to take any action that would result in, any of the foregoing.
Appears in 1 contract
Conduct of the Business Prior to the Closing Date. (a) Except as permitted, required or specifically contemplated by this Agreement, including those actions contemplated in Section 5.2 of the Company Disclosure Schedule or in this Article V, or as required by a Governmental Authority of competent jurisdiction or by applicable Law, during the period commencing on the date hereof and ending on the Closing Date, the Company shall operate the Business in the ordinary course of business and consistent with past practice in all material respects, including:
(i) using reasonable best efforts to (A) preserve intact the present business of the Business, (B) maintain the Tangible Acquired Assets in good operating condition and repair to permit their use in the continuing operation of the Business, ordinary wear and tear excepted, (C) maintain the goodwill of customers, suppliers and other Persons with whom the Company otherwise has significant business relationships in connection with the Business and (D) continue in all material respects the current sales, marketing and promotional activities relating to the Business;
(ii) causing the Books and Records to be maintained in the usual, regular and ordinary manner; and
(iii) complying in all material respects with all Laws applicable to the Business and promptly following receipt thereof give to Buyer copies of any notice received from any Governmental Authority or other Person alleging any material violation of any such Laws.
(b) Without limiting the generality of clause (a) above and subject to the exceptions therein, the Company shall not do any of the following with With respect to the Business, except (x) as contemplated in this Agreement or in Section 6.1 of the Acquired Assets Seller Disclosure Letter, (y) as required by any Legal Requirement or the Assumed Liabilities, unless approved Order or (z) as otherwise expressly consented to in writing by Buyer, which consent shall not be unreasonably withheld withheld, conditioned or delayed; prior to the Closing, Seller shall:
(i) other than (A) operate and maintain the Business in the ordinary course of business consistent with past practice, including the orderly payment of all obligations within timeframes consistent with past practice and without prepayments or lump payments not consistent with past practice, (AB) acquire any assets that would be included in use its commercially reasonable efforts to preserve intact (x) the Acquired Assets for a value in excess business organization of $50,000the Business, (By) dispose the relationships with customers, suppliers and other Persons having material business dealings with the Business and (z) the goodwill of any Acquired Assets with a value in excess of $50,000 or the Business, (C) incur any indebtedness for borrowed money that would be included in the Assumed Liabilities, issue any debt securities or assume or guarantee the obligations subject to prudent management of any other Person, or make any loans or advances, in each case that would be included in the Assumed Liabilities;
(ii) to the extent related to the Business’s workforce and business needs and compliance with Section 7.2 of this Agreement, increase or pay any payment or benefit not required by any existing Benefit Plan or increase any salaries or wages use its commercially reasonable efforts to keep available the services of the Business Employees, other than (AD) use its commercially reasonable efforts to maintain its existing Permits, (E) perform in all material respects its obligations under the Material Contracts, (F) operate and maintain the Purchased Assets in their present condition (reasonable wear and tear and casualty excepted), subject to retirements in the ordinary course of business, (BG) make the investments in property, plant and equipment and other utility assets contemplated in the budget included on Section 6.1(a)(i)(G) of the Seller Disclosure Letter in the ordinary course of business consistent with past practice, without any intentional deferral of any such investments, but subject to normal weather and seasonality adjustments as may be necessary; and (H) use commercially reasonable efforts to facilitate Buyer’s participation in all union negotiations relating to the Collective Bargaining Agreement, including, but not limited to, facilitating any required consent of the union to such participation by a Governmental Authority, works council agreement or applicable Law, or (C) in accordance with regularly scheduled periodic increases or paymentsBuyer;
(iiiii) not enter into, modifyassign, terminate (except in accordance with its terms) amend, renew or renew (except in accordance with its terms) extend, any Assumed Lease or Right of Way or Material Contract or Lease, except other than in the ordinary course of business;
(iviii) permit not (A) sell, lease (as lessor) or dispose of or otherwise transfer or make any Acquired Asset to become Material Contract for the sale, lease (as lessor), disposition or transfer of, or subject to any Lien Encumbrance (other than a Permitted Encumbrance in the ordinary course of business), any Purchased Assets, other than (1) the sale of inventory in the ordinary course of business or (2) the sale or lease (as lessor) of Purchased Assets (other than Purchased Real Property) not to exceed $2,000,000 in the aggregate, or (B) purchase or lease (as lessee), or make any Material Contract for the purchase or lease (as lessee) of, any Purchased Assets, other than (x) the purchase of inventory in the ordinary course of business, (y) pursuant to any capital expenditure reflected in the capital expenditure budget previously delivered to Buyer and set forth on Section 6.1(a)(i)(G) of the Seller Disclosure Letter, or (z) the purchase or lease (as lessee) of Purchased Assets not to exceed $5,000,000 in the aggregate;
(iv) not (a) make any unbudgeted capital expenditure or capital expenditure commitment in excess of $3,000,000 in the aggregate except for Permitted Liens) unless such Lien is released upon expenditures incurred after consultation with Buyer and in accordance with good utility practices in the event of service interruption, emergency or prior casualty loss to Closingbe reasonably determined in Seller’s sole discretion;
(v) enter into comply in all material respects with all applicable Legal Requirements, including those relating to the filing of reports and the payment of Taxes due to be paid on or offer prior to enter into any employment or consulting agreement the Closing, other than those contested in good faith for which reserves have been established in accordance with any person who is or would become a Business EmployeeGAAP;
(vi) except as required by the terms of any existing Contract which has been disclosed on Section 5.9 of the Seller Disclosure Letter, Employee Plan existing as of the date hereof and set forth in Section 5.10 of the Seller Disclosure Schedule, or Collective Bargaining Agreement, or as otherwise required by applicable law, not (i) except in the ordinary course consistent with past practice and after consultation with Buyer, materially increase in the aggregate the compensation, bonus, pension, welfare, fringe or other benefits, severance or termination pay (taken as a whole) of any Employee or Former Employee, (ii) promote any Employee who is an officer to a position more senior than such Employee’s position as of the date hereof, promote a non-officer Employee to an officer position or hire or make an offer to hire any officer, (iii) adopt or establish any plan, program or arrangement that would be an Employee Plan, or otherwise amend, waive or accelerate the vesting criteria or vesting requirements of payment of any compensation or benefit under any Employee Plan or remove any existing restrictions in any Employee Plan or awards made thereunder, (iv) change any actuarial or other assumptions used to calculate funding obligations with respect to any Employee Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or applicable Laws or (v) provide written communication to Employees or Former Employees regarding the compensation, benefits or other treatment they will receive in connection with the transactions contemplated by Section 2.1this Agreement, issue unless any shares such communications are consistent with prior directives or documentation provided to Seller by Buyer (in which case, Seller shall provide Buyer with prior notice of capital stock or rights and the opportunity to purchase the capital stock of review and comment upon any Transferred Subsidiarieswritten such communications);
(vii) transfer or grant any material right under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property used except in the Businessordinary course of business, not terminate any Employees, not hire any Employees or modify any fill vacancies existing right as of the date hereof or created by terminations in accordance with respect theretothis provision or by voluntary resignations;
(viii) grant not adopt, enter into, renew or extend any power Collective Bargaining Agreement applicable to the Employees, provided, however, that if Closing has not occurred by May 1, 2015, then Seller shall be permitted to renew or extend the existing Collective Bargaining Agreement so long as (i) the terms and conditions of attorney such renewed or extended Collective Bargaining Agreement do not adversely impact Buyer in any manner and (ii) Buyer is present at all negotiations relating to the Businessforegoing;
(ix) enter into not terminate or amend relinquish any collective bargaining material rights under any Lease, Right of Way or union contract or other agreement covering the Business EmployeesMaterial Contract;
(x) institute, settle or agree to not settle any claim, action, suit, Proceeding before any Governmental Authority or investigation, whether civil, criminal, administrative or investigative, except settlements for sums less than $5,000,000 that creates (A) are fully covered by to reserves existing as of the date hereof in accordance with GAAP or imposes any (B) would not reasonably be expected to have a material continuing obligation or restriction adverse effect on the Business or the Acquired Assetsafter Closing;
(xi) modifymake all material regulatory filings as required by Law, change provided that Seller shall not initiate any general rate proceeding or otherwise alter in make any other material respect the fundamental nature of filing related to the Business proposing new tariff provisions other than as presently conductedcontemplated by this Agreement or agreed to by Buyer;
(xii) make or permit any material change to its accounting methods or principles, except as required by GAAP or as would affect solely maintain the Technology Business; orPolicies;
(xiii) not conduct any subsurface investigation or earth disturbance activities on the Purchased Real Property, except as necessary to comply with any covenants or obligations set forth in this Agreement, to comply with any Legal Requirement or to correct any violations of Environmental Laws relating to the Business or the Purchased Assets, to continue the ongoing work at the manufactured gas plant properties to address Contamination in accordance with the Pennsylvania Land Recycling and Environmental Remediation Standards Act (“Act 2”) or other applicable Environmental Law or to conduct activities or projects planned or scheduled prior to the date hereof or otherwise commit in the normal course of operating the Business or the Purchased Assets, such activities including but not limited to domodification, replacement, repair or take maintenance of equipment, facilities, fixtures, systems or improvements located thereon, and in each such case Seller will provide Buyer with reasonable advance notice of any action or omit such activities;
(xiv) not amend the OPEB Plan to increase the OPEB Liabilities; and
(xv) not make any commitment to take any action that would result in, any of the foregoingactions prohibited by this Section 6.1(a).
Appears in 1 contract
Conduct of the Business Prior to the Closing Date. (a) Except as permitted, required or specifically contemplated by this Agreement, including those actions contemplated in Section 5.2 of the Company Disclosure Schedule or in this Article V, or as required by a Governmental Authority of competent jurisdiction or by applicable Law, during During the period commencing on from the date hereof and ending on continuing until the Closing Dateearlier of the termination of this Agreement in accordance with its terms and the Closing, except with the prior written consent of the Purchaser, which shall not be unreasonably withheld, delayed or conditioned and except in the event that such action is required by Law, in which case the prior written consent of the Purchaser shall not be required, but prior to such action being taken, the Company shall operate provide written notice of such action in reasonable detail to the Business Purchaser, the Company shall, and the Seller and the Trustees shall cause the Company to:
(i) conduct the operations of the Company in the ordinary course of business (including the collection of the Receivables and consistent the payment of accounts payable) and use best efforts to preserve intact its business organization, keep available the services of officers, employees, consultants and independent contractors, and maintain satisfactory relationships with suppliers, customers and others having business relationships with the Company;
(ii) maintain the assets of the Company in customary repair, order and condition, maintain insurance reasonably comparable to that in effect on the Latest Balance Sheet Date, replace in accordance with past practice inoperable or worn out assets with modern assets of comparable quality, invest in capital expenditures in accordance with the Company’s annual budget and past practices and, in the event of a casualty, loss or damage to any of such assets or properties prior to the Closing Date for which the Company is insured or the condemnation of any assets or properties, either repair or replace such assets or property or, if the Purchaser agrees, cause the Company to retain such insurance or condemnation proceeds;
(iii) pay all material respectsTaxes when they become due and payable;
(iv) maintain in good standing all Permits held by the Company on a timely basis;
(v) within thirty (30) days after the end of each calendar month beginning with the calendar month ending after the date hereof, includingfurnish to the Purchaser the Latest Balance Sheet, and the related unaudited statements of operations and other comprehensive income, statements of stockholders’ equity, and statements of cash flows for the period then ended; or
(vi) without undue disruption of its business, give the Purchaser and its representatives reasonable access upon reasonable notice and during times mutually convenient to the Purchaser and senior management of the Company to the facilities, properties, employees, books, and records (including financial, technical and operating data and other information) of the Company as from time to time may be reasonably requested.
(b) During the period from the date hereof and continuing until the earlier of the termination of this Agreement in accordance with its terms and the Closing, without the prior written consent of the Purchaser, which shall not be unreasonably withheld, delayed or conditioned and except as set forth on Schedule 6.10(b) or in the event such action is required by Law, in which case the prior written consent of the Purchaser shall not be required, but prior to such action being taken, the Company shall provide written notice of such action in reasonable detail to the Purchaser, the Company shall not, and the Seller shall cause the Company not to:
(i) using reasonable best efforts to (A) preserve intact the present business permit or cause any event, occurrence, development or state of the Businesscircumstances or facts which, (B) maintain the Tangible Acquired Assets in good operating condition and repair to permit their use individually or in the continuing operation of the Businessaggregate, ordinary wear and tear excepted, (C) maintain the goodwill of customers, suppliers and other Persons with whom the Company otherwise has significant business relationships in connection with the Business and (D) continue in all material respects the current sales, marketing and promotional activities relating had or could reasonably be expected to the Businesshave a Material Adverse Effect;
(ii) causing permit or cause any damage, destruction, loss or casualty to property or assets of the Books and Records to be maintained Company in the usualexcess of $15,000, regular and ordinary manner; andwhether or not covered by insurance;
(iii) complying in all material respects permit or cause any sale, transfer, license, pledge, mortgage or other disposition of tangible or intangible assets by the Company outside the ordinary course of business consistent with all Laws applicable to the Business and promptly following receipt thereof give to Buyer copies past practice;
(iv) permit or cause any subjection of any notice received from asset of the Company to, or agreement to subject any Governmental Authority asset of the Company to, any Lien;
(v) permit or other Person alleging cause any material violation change to or agreement to change the authorized or issued Equity Interests of the Company (including by way of a split, combination, reclassification or modification of the terms of any Equity Interests) or any granting, issuance, sale, delivery, pledge encumbrance, transfer or agreement to issue, sell, deliver, pledge, encumber or transfer any Equity Interests or grant or issue any option, purchase right, convertible stock or registration right in respect of such Laws.Equity Interests;
(bvi) Without limiting the generality permit or cause any declaration, setting aside, payment of clause (a) above and subject to the exceptions therein, the Company shall not do any distribution in respect of any of the following with Equity Interests of the Company, or payment or other consideration of any kind to any Affiliate of the Company, other than guaranteed payments, salary and ordinary course reimbursements;
(vii) permit or cause any incurrence by the Company of, or commitment by the Company to incur or otherwise become liable in respect of, any Indebtedness, other than borrowings in the ordinary course of business, including purchase money security interests, mechanics’ liens, equipment financing and ordinary course trade payables;
(viii) permit or cause cancellation or compromise or agreement to cancel or compromise any Indebtedness owed to the Business, Company or written claim of the Acquired Assets or the Assumed Liabilities, unless approved or consented to in writing by Buyer, which consent shall not be unreasonably withheld or delayed:Company;
(iix) permit or cause any transfer or grant of any license under any Intellectual Property owned or used by the Company;
(x) permit or cause any waiver of any other rights held by the Company other than in the ordinary course of business and consistent with past practice, (A) acquire any assets that would be included in the Acquired Assets for a value in excess of $50,000, (B) dispose of any Acquired Assets with a value in excess of $50,000 or (C) incur any indebtedness for borrowed money that would be included in the Assumed Liabilities, issue any debt securities or assume or guarantee the obligations of any other Person, or make any loans or advances, in each case that would be included in the Assumed Liabilities;
(iixi) permit or cause any acquisition of real property or undertaking or commitment to undertake Capital Expenditures exceeding $10,000 in the extent related to the Business, increase or pay any payment or benefit not aggregate;
(xii) except as required by any existing Company Benefit Plan or Contract, permit or cause any grant of any increase any salaries in or wages acceleration of payment of the Business Employeescompensation or benefits of any of the employees, other than (A) in consultants, independent contractors or Leased Workers of the ordinary course of business, (B) as may be required by a Governmental Authority, works council agreement or applicable LawCompany, or (C) in accordance with regularly scheduled periodic increases entry into any employment, consulting, independent contractor, or paymentsstaffing, sale bonus, stay bonus, profit sharing, incentive, severance Contract or collective bargaining agreement for the benefit of any such employee, consultant, independent contractor or Leased Worker;
(iiixiii) enter permit or cause any hire or termination (other than for cause) of any senior level employee or officer of the Company;
(xiv) permit or cause any material change or agreement to make any material change in the customary methods of financial accounting or financial accounting practices of the Company;
(xv) permit or cause any settlement of, or agreement to settle, any Proceeding;
(xvi) permit or cause any violation of, or failure by the Company to comply, in all material respects, with any Law, Order or other requirements imposed by any Governmental Entity;
(xvii) permit or cause any failure to maintain in full force and effect insurance policies for property damage, casualty, general commercial liability or workers’ compensation;
(xviii) permit or cause any entrance into, modifyextension, terminate (except in accordance with its terms) modification, termination or renew (except in accordance with its terms) renewal of any Assumed Material Contract or LeasePermit, as applicable, except in the ordinary course of business;
(ivxix) permit any Acquired Asset make a material change in the manner in which the it generally extends discounts or credits to become subject to any Lien (except for Permitted Liens) unless such Lien is released upon or prior to Closingcustomers;
(vxx) lease or acquire any real property;
(xxi) enter into any Contract that restrains, restricts, limits or offer impedes the ability of the Company to compete with or conduct any business or line of business in any geographic area or solicit the employment of any Persons;
(xxii) adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(xxiii) enter into any employment new line of business or consulting agreement with discontinue any person who is line of business or would become a Business Employeeany material business operations;
(vixxiv) except as contemplated dispose or disclose to any Person not bound by Section 2.1an obligation of confidentiality, issue secrecy or nondisclosure to the Company, any shares of capital stock or rights to purchase the capital stock of any Transferred SubsidiariesConfidential Information;
(viixxv) transfer or grant take any material right under, or enter into action which would adversely affect the ability of the parties hereto to consummate the transactions contemplated by this Agreement and any settlement regarding the breach or infringement of, any material Intellectual Property used in the Business, or modify any existing right with respect theretoRelated Document;
(viiixxvi) grant amend or extend any power of attorney relating to modify the BusinessCompany’s organization documents;
(ixxxvii) enter into or amend intentionally take any collective bargaining or union contract or other agreement covering the Business Employees;
(x) institute, settle or agree to settle any Proceeding before any Governmental Authority that creates or imposes any material continuing obligation or restriction on the Business or the Acquired Assets;
(xi) modify, change or otherwise alter in any material respect the fundamental nature of the Business as presently conducted;
(xii) make or permit any material change to its accounting methods or principles, except as required by GAAP or as action which would affect solely the Technology Businessrequire disclosure under this Section 6.9(b); or
(xiiixxviii) otherwise commit to doenter into any agreement, authorization or take any action commitment (either orally or omit in writing) for the Company to take any action that would result in, any of the foregoingactions specified in this Section 6.9(b).
(c) Notwithstanding anything to the contrary contained in this Section 6.9, prior to the Closing, the Company may (i) distribute to the Seller an amount of cash and the investments set forth on Schedule 6.9(c) as agreed by the Purchaser, provided, however, that in no event shall such action result in the Company having less than $300,000 of Cash at the Closing and (ii) without the Purchaser’s prior written consent, request and obtain forgiveness of the outstanding PPP Loan in accordance with the terms of the PPP Loan and applicable law.
Appears in 1 contract
Samples: Securities Purchase Agreement (Vahanna Tech Edge Acquisition I Corp.)
Conduct of the Business Prior to the Closing Date. (a) Except as permitted, required or specifically contemplated by this Agreement, including those actions contemplated in Section 5.2 of the Company Disclosure Schedule or in this Article V, or as required by a Governmental Authority of competent jurisdiction or by applicable Law, during During the period commencing on the date hereof and ending on continuing until the Closing DateClosing, the Company agrees as to itself and its Subsidiaries that, except as expressly permitted or required by this Agreement or as set forth in Schedule 5.2(b) of the Company Disclosure Schedule or to the extent that the Buyer shall operate otherwise consent in writing, the Company and its Subsidiaries shall carry on the Business only in the ordinary course of business and consistent with past practice in all material respectspractice, includingincluding using reasonable best efforts to:
(i) using reasonable best efforts preserve intact, protect and maintain the Business;
(ii) keep available and continue to provide all services currently provided to the Business;
(iii) (A) preserve intact maintain all existing rights, privileges, licenses and other authorizations (including all Intellectual Property) reasonably necessary for the present business operation of the Business, (B) keep available the services of the Current Business Employees, (C) maintain the Tangible Acquired relationship with, and goodwill of, customers, suppliers, vendors, Distributors, sales prospects and other Persons with whom the Company or any of its Subsidiaries otherwise has business relationships relating to the Business, (D) continue in all material respects the current sales, marketing and promotional activities relating to the Business, (E) keep and maintain the Transferred Assets in good operating condition and repair to permit their use in the continuing operation of the Business, ordinary wear and tear excepted, (CF) maintain the goodwill of customers, suppliers and other Persons with whom the Company otherwise has significant business relationships in connection with the Business and (D) continue perform its obligations in all material respects under the current salesAssumed Contracts and the Leases included within the Transferred Assets in accordance with the terms thereof, marketing and promotional activities relating to (G) maintain in place its insurance policies (or replacement policies in similar amounts and protecting against similar risks) as in effect as of the Businessdate hereof;
(iiiv) causing pay and discharge all Liabilities as they become due and all payables in the ordinary course of business and in the same manner as previously paid (subject to the Company’s ability to pursue in good faith any bona fide disputes);
(v) cause the Books and Records to be maintained in the usual, regular and ordinary manner; and
(iiivi) complying comply in all material respects with all Laws applicable to the Business and and, promptly following receipt thereof thereof, give to the Buyer copies of any notice received from any Governmental Authority or other Person alleging any material violation of any such Laws.
(b) Without limiting the generality of clause (a) above and subject to the exceptions thereintherein and in Schedule 5.2(b) of the Company Disclosure Schedule, from the date of this Agreement to the Closing, the Company shall not and shall not permit any of its Subsidiaries to do any of the following with respect to the Business, the Acquired Assets or the Assumed Liabilitiesfollowing, unless approved or consented to in writing by the Buyer, which consent shall not be unreasonably withheld or delayed:
(i) sell, lease, assign, transfer, license, sublicense, encumber or otherwise dispose of, in whole or in part, any of the Transferred Assets, or otherwise extend, amend or modify any rights thereto, other than pursuant to End User Agreements entered into in accordance with Section 5.2(b)(xvii) or with respect to worn-out or obsolete property;
(ii) enter into any new line of business or modify, change or otherwise alter in any material respect the fundamental nature of the Business;
(iii) cancel, rescind, terminate, assign or make any material change to any Assumed Contract, other than the expiration of an Assumed Contract in accordance with its terms as of the date hereof, or enter into any Contract that would be required to be listed on Schedule 4.2(u) of the Company Disclosure Schedule if it had been entered into prior to the date of this Agreement, except in each case in the ordinary course of business and consistent with past practice, (A) acquire any assets that would be included in the Acquired Assets for a value in excess of $50,000, (B) dispose of any Acquired Assets with a value in excess of $50,000 or (C) incur any indebtedness for borrowed money that would be included in the Assumed Liabilities, issue any debt securities or assume or guarantee the obligations of any other Person, or make any loans or advances, in each case that would be included in the Assumed Liabilities;
(ii) to the extent related to the Business, increase or pay any payment or benefit not required by any existing Benefit Plan or increase any salaries or wages of the Business Employees, other than (A) in the ordinary course of business, (B) as may be required by a Governmental Authority, works council agreement or applicable Law, or (C) in accordance with regularly scheduled periodic increases or payments;
(iii) enter into, modify, terminate (except in accordance with its terms) or renew (except in accordance with its terms) any Assumed Contract or Lease, except in the ordinary course of business;
(iv) permit enter into any Acquired Asset Contract that could, after the Closing, limit or restrict the Buyer or any of its Subsidiaries or Affiliates (or any successors thereto), from engaging or competing in any line of business or in any geographic area, or require referrals of any business or require the Buyer or any of its Subsidiaries or Affiliates to become subject make available any investment opportunities to any Person on a priority, equal or exclusive basis;
(v) incur, create or assume any indebtedness or Liabilities for borrowed money or guarantee any such obligation or issue or sell any debt securities or warrants or enter into any “keepwell” or other similar arrangements which would constitute an Assumed Liability;
(vi) incur, create, assume or suffer to exist any Lien on any Transferred Asset (except for Permitted Liens) unless such Lien is released upon or prior to Closing;
(vvii) except as required by any applicable Law, Governmental Authority or any Company Plan: (A) increase the compensation or benefits of any US Employee or Non-US Employee, (B) loan or advance any money or other property, or make any payment or distribution of any compensation, to any US Employee or Non-US Employee, except for reasonable advances for travel and business expenses, or the payment of salaries, wages and other accrued compensation, each in the ordinary course of business consistent with past practices, (C) establish, adopt, enter into into, amend or offer terminate any Company Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Plan if it were in existence as of the date of this Agreement, or (D) grant any severance or termination pay to enter into any employment US Employees or consulting agreement with any person who is or would become a Business EmployeeNon-US Employees;
(viviii) except as contemplated by Section 2.1, issue terminate any shares of capital stock Business Employees other than for cause or rights to purchase the capital stock of hire any Transferred Subsidiariesnew Business Employees;
(viiix) transfer transfer, abandon or grant any material right under, or enter into any settlement regarding regarding, or institute any Proceeding or assert any claim regarding, the breach or infringement of, any material Intellectual Property owned by or used or held for use in the conduct or operation of the Business, or modify any existing right with respect thereto;
(viii) grant or extend any power of attorney relating to the Business;
(ixx) enter into or amend any collective bargaining agreement or union contract or other agreement covering the Business EmployeesEmployees or enter into any negotiations for the purposes of entering into any such agreement, except as required by applicable Law, Governmental Authority or any Company Plan;
(xxi) (A) institute, settle or agree to settle any Proceeding by or before any Governmental Authority that creates or imposes any material continuing obligation or restriction on the Business or the Acquired Assets;
would otherwise constitute an Assumed Liability or (xiB) modifywaive, change release or otherwise alter in relinquish any material respect the fundamental nature of claims or rights relating to the Business as presently conductedor the Transferred Assets;
(xii) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or reorganization or resolutions providing for or authorizing the foregoing;
(xiii) incur any Liabilities with respect to capital expenditures that will not be discharged prior to Closing, other than Excluded Liabilities and for those approved in writing by the Buyer;
(xiv) make or permit any material change to its accounting methods or principles, except as required by changes in GAAP as concurred in by the Company’s independent auditors;
(xv) enter into any agreement with a Related Person relating to the Business;
(xvi) (A) offer discounts on the sale of Products other than in the ordinary course of business consistent with past practice or (B) offer price protection on the sale of Products;
(xvii) enter into, renew, or modify or amend in any material respect any Contract (A) relating to the distribution, sale, license or marketing by third parties of Products, or (B) to provide professional services or software implementation, deployment or development services related to the Business, in each case other than new End User Agreements or renewals of existing End User Agreements, in each case for a term of one (1) year or less and otherwise in a manner consistent with past practices (including future maintenance or service obligations under any such Contract and the allocation of revenue under any such Contract to future maintenance or service obligations); provided that in no event shall any End User Agreement (or modification or amendment to any End User Agreement) contain pricing, discounting, service or maintenance terms or provisions other than in the ordinary course of business consistent with past practices;
(xviii) revalue any of the Transferred Assets (whether tangible or intangible), including without limitation writing down or up the value of any Transferred Asset, writing off any Receivable, settling, discounting or compromising any Receivable, or reversing any reserves, other than as would affect solely the Technology Businessrequired by GAAP; or
(xiiixix) otherwise commit to do, or take any action or omit to take any action that would result in, any of the foregoing.
Appears in 1 contract
Conduct of the Business Prior to the Closing Date. (a) Except During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing Date, except as permitted, required expressly contemplated or specifically contemplated permitted by this Agreement, including those actions contemplated in Section 5.2 of Sellers shall, and shall cause CCM and the Company Disclosure Schedule or in this Article Vand each of their respective Subsidiaries, or as required by a Governmental Authority of competent jurisdiction or by applicable Law, during the period commencing on the date hereof and ending on the Closing Date, the Company shall operate the Business in the ordinary course of business and consistent with past practice in all material respects, including:
(i) using reasonable best efforts to (Aa) preserve intact the present business of the Business, (B) maintain the Tangible Acquired Assets in good operating condition and repair to permit their use in the continuing operation of the Business, ordinary wear and tear excepted, (C) maintain the goodwill of customers, suppliers and other Persons with whom the Company otherwise has significant business relationships in connection with conduct the Business and (D) continue in all material respects the current sales, marketing and promotional activities relating to the Business;
(ii) causing the Books and Records to be maintained Company Business in the usual, regular and ordinary manner; and
(iii) complying in all material respects with all Laws applicable to the Business and promptly following receipt thereof give to Buyer copies of any notice received from any Governmental Authority or other Person alleging any material violation of any such Laws.
(b) Without limiting the generality of clause (a) above and subject to the exceptions therein, the Company shall not do any of the following with respect to the Business, the Acquired Assets or the Assumed Liabilities, unless approved or consented to in writing by Buyer, which consent shall not be unreasonably withheld or delayed:
(i) other than in the ordinary course of business and consistent with past practice, (Ab) acquire any assets that would be included in use all reasonable commercial efforts consistent with past practice and policies to preserve intact CCM's and the Acquired Assets for a value in excess of $50,000Company's present business organizations, (B) dispose of any Acquired Assets with a value in excess of $50,000 or (C) incur any indebtedness for borrowed money that would be included in keep available the Assumed Liabilities, issue any debt securities or assume or guarantee the obligations of any other Person, or make any loans or advances, in each case that would be included in the Assumed Liabilities;
(ii) to the extent related to the Business, increase or pay any payment or benefit not required by any existing Benefit Plan or increase any salaries or wages services of the Business Employees, other than employees of CCM and the Company and their Subsidiaries (A) in it being understood that CCM and the Company and their Subsidiaries shall not be obligated to make out of the ordinary course of businessbusiness payments to their respective employees in order to keep available the services of such employees) and preserve the relationships with customers, suppliers, distributors, licensors, licensees of CCM and the Company and their Subsidiaries, and others having significant business dealings with CCM and the Company and their Subsidiaries, (Bc) use all reasonable commercial efforts to maintain all of their existing permits, licenses, authorizations, orders and regulatory approvals and the minimum net capital and excess net capital necessary to conduct their businesses as may be required by a Governmental Authority, works council agreement currently conducted and (d) take no action or applicable Law, fail to take an action which would adversely affect or (C) in accordance with regularly scheduled periodic increases or payments;
(iii) enter into, modify, terminate (except in accordance with its terms) or renew (except in accordance with its terms) any Assumed Contract or Lease, except in the ordinary course of business;
(iv) permit any Acquired Asset to become subject to any Lien (except for Permitted Liens) unless such Lien is released upon or prior to Closing;
(v) enter into or offer to enter into any employment or consulting agreement with any person who is or would become a Business Employee;
(vi) except as contemplated by Section 2.1, issue any shares of capital stock or rights to purchase the capital stock of any Transferred Subsidiaries;
(vii) transfer or grant any material right under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property used in the Business, or modify any existing right with respect thereto;
(viii) grant or extend any power of attorney relating to the Business;
(ix) enter into or amend any collective bargaining or union contract or other agreement covering the Business Employees;
(x) institute, settle or agree to settle any Proceeding before any Governmental Authority that creates or imposes any material continuing obligation or restriction on the Business or the Acquired Assets;
(xi) modify, change or otherwise alter delay in any material respect the fundamental nature consummation of the transactions contemplated hereby, including, without limitation, the ability of either Purchaser or Sellers to obtain any necessary approvals of any regulatory agency or other Governmental Entity required for the transactions contemplated hereby. Following the date hereof until the Closing, each of CCM, the Company and their respective Subsidiaries shall provide to Purchaser and their Subsidiaries, promptly after the filing thereof, a copy of each report, registration statement, other document or amendment filed with any Governmental Entity. From the date hereof until the Closing, Parent will take all action necessary, including funding, so that if Sellers were preparing consistent financial statements as of the Closing, the earnings of the Business and the Company Business as presently conducted;
(xii) make or permit any material change to its accounting methods or principles, except as required by GAAP or as would affect solely the Technology Business; or
(xiii) otherwise commit to do, or take any action or omit to take any action that would result in, any of the foregoingClosing would be consistent (including line items) with the presentations contained in the Combined Financial Statements as of the Closing, and would reflect the Combined Balance Sheet as of the Balance Sheet Date as set forth in Section 3.5(a) of the Disclosure Schedule plus (i) the movement in the combined statement of operations of CCM and the Company consistent with Section 3.5(a) of the Disclosure Schedule, excluding the movement in the statement of operating results of the Electronic Program Trading business of CCM and including the movement in the statement of operating results of the Options Business of CS&Co. as set forth in Section 3.5(d) of the Disclosure Schedule, all prepared in a manner consistent with the operating results in Section 3.5(d) of the Disclosure Schedule, for the period from July 1, 2004 to the Closing and (ii) any effects of activities or transactions expressly contemplated or permitted by this Agreement. For the avoidance of - 45 - doubt, Sellers and their Affiliates (other than CCM, the Company and their respective Subsidiaries) will continue to fund all corporate allocations historically funded by them and CCM, the Company and their respective Subsidiaries will continue to fund all corporate allocations historically funded by them.
Appears in 1 contract
Conduct of the Business Prior to the Closing Date. (a) Except as permitted, required or specifically contemplated by this Agreement, including those actions contemplated in Section 5.2 of the Company Disclosure Schedule or in this Article V, or as required by a Governmental Authority of competent jurisdiction or by applicable Law, during During the period commencing on the date hereof and ending on continuing until the Closing DateClosing, the Company agrees as to itself and its Subsidiaries that, except as expressly permitted or required by this Agreement, including pursuant to the Reorganization, or as set forth in Section 5.2(a) of the Company Disclosure Schedule, or to the extent that the Buyer shall operate otherwise consent in writing, the Company and its Subsidiaries shall carry on the Consumables Business and the Transferred Process Operations only in the ordinary course of business and consistent with past practice in all material respectspractice, includingincluding using reasonable best efforts to:
(i) using reasonable best efforts preserve intact, protect and maintain the Consumables Business and the Transferred Process Operations;
(ii) keep available and continue to provide all services currently provided to the Consumables Business and the Transferred Process Operations;
(iii) (A) preserve intact maintain all rights, privileges, licenses and other authorizations (including all Intellectual Property) necessary or desirable for the present business operation of the BusinessConsumables Business and the Transferred Process Operations, (B) maintain keep available the Tangible Acquired Assets in good operating condition and repair to permit their use in the continuing operation services of the Business, ordinary wear Consumables Business Employees and tear exceptedthe Process Business Employees, (C) maintain the relationship with, and goodwill of of, customers, suppliers suppliers, vendors, distributors and other Persons with whom the Company or any of its Subsidiaries otherwise has significant business relationships in connection with relating to the Consumables Business and or the Transferred Process Operations, (D) continue in all material respects the current sales, marketing and promotional activities relating to the BusinessConsumables Business and the Transferred Process Operations, (E) keep and maintain the Transferred Assets, including the properties and assets of the Transferred Subsidiaries, in good operating condition and repair to permit their use in the continuing operation of the Consumables Business and the Transferred Process Operations, ordinary wear and tear excepted, (F) perform all of its obligations under the Contracts and the Leases included within the Transferred Assets in accordance with the terms thereof, and (G) maintain in place its insurance policies (or replacement policies in similar amounts and protecting against similar risks) as in effect as of the date hereof;
(iiiv) causing pay and discharge all Liabilities as they become due and all payables in the ordinary course of business and in the same manner as previously paid (subject to the Company’s ability to pursue in good faith any bona fide disputes);
(v) cause the Books and Records to be maintained in the usual, regular and ordinary manner; and
(iiivi) complying comply in all material respects with all Laws applicable to the Consumables Business and the Process Business and, promptly following receipt thereof thereof, give to the Buyer copies of any notice received from any Governmental Authority or other Person alleging any material violation of any such Laws.
(b) Without limiting the generality of clause (a) above and subject to (x) the exceptions thereintherein and in Section 5.2(b) of the Company Disclosure Schedule and (y) the Reorganization, from the date of this Agreement to the Closing, the Company shall not and shall not permit any of its Subsidiaries to do any of the following with respect to the Business, the Acquired Assets or the Assumed Liabilitiesfollowing, unless approved or consented to in writing by Buyer, the Buyer (which consent shall not be unreasonably withheld or delayed:):
(i) (A) acquire or agree to acquire by merging or consolidating with, by purchasing a substantial equity interest in or a substantial portion of the assets of, by forming a partnership or joint venture with, or by any other manner, any business or any corporation, partnership, association or other Person or business organization or division thereof, (B) otherwise acquire any property or assets (except as set forth in Section 5.2(b)(xviii) or (xxii)), or (C) make any investment, either by purchase of stock or securities, contribution to capital, property transfer or otherwise;
(ii) sell, lease, assign, transfer, license, sublicense, encumber or otherwise dispose of, in whole or in part, any of the Transferred Assets, other (A) than the property located at Xxx-X-Xxxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxx, Xxxxx, which sale shall take place only on a “VAT exclusive” basis to the extent lawful and (B) sales of Inventory in the ordinary course of business and consistent with past practice, (A) acquire any assets that would be included in the Acquired Assets for a value in excess of $50,000, (B) dispose of any Acquired Assets with a value in excess of $50,000 or (C) incur any indebtedness for borrowed money that would be included in the Assumed Liabilities, issue any debt securities or assume or guarantee the obligations of any other Person, or make any loans or advances, in each case that would be included in the Assumed Liabilities;
(ii) to the extent related to the Business, increase or pay any payment or benefit not required by any existing Benefit Plan or increase any salaries or wages of the Business Employees, other than (A) in the ordinary course of business, (B) as may be required by a Governmental Authority, works council agreement or applicable Law, or (C) in accordance with regularly scheduled periodic increases or payments;
(iii) enter into, into any new line of business or modify, terminate (except change or otherwise alter in accordance with its terms) any material respect the fundamental nature of the Consumables Business or renew (except in accordance with its terms) any Assumed Contract or Lease, except in the ordinary course of businessTransferred Process Operations;
(iv) permit enter into, cancel, rescind, terminate, renew, assign or make any Acquired Asset to become subject material change to any Contract, other than the expiration of a Contract in accordance with its terms as of the date hereof;
(v) enter into any Contract that limits or otherwise restricts the Company or any of its Subsidiaries or Affiliates (or any successors thereto) or that by its terms could, after the Closing, limit or restrict the Buyer or any of their respective Subsidiaries or Affiliates (or any successors thereto), from engaging or competing in any line of business or in any geographic area, or require referrals of any business or require the Company or any of its Subsidiaries or Affiliates to make available any investment opportunities to any Person on a priority, equal or exclusive basis;
(vi) make any prepayment or other payment on or in respect of any Liabilities of the Acquired Businesses unless required by the terms thereof on the date of this Agreement, or incur, create or assume any indebtedness or Liabilities for borrowed money or guarantee any such obligation or issue or sell any debt securities or warrants or enter into any “keepwell” or other similar arrangements which would constitute an Assumed Liability;
(vii) incur, create, assume or suffer to exist any Lien on any Transferred Asset (except for Permitted Liens) unless such Lien is released upon or prior to Closing;
(vviii) enter into except as required by any applicable Law, Governmental Authority or offer to enter into any employment Company Plan: (A) increase the compensation or consulting agreement with benefits of any person who is Consumables Business Employee or would become a any Process Business Employee, (B) loan or advance any money or other property, or make any payment or distribution of any compensation, to any Consumables Business Employee or to any Process Business Employee, (C) establish, adopt, enter into, amend or terminate any Company Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Plan if it were in existence as of the date of this Agreement, (D) grant any severance or termination pay, other than in accordance with the terms of any agreement in effect as of the date hereof, or (E) grant any equity or equity-based awards in any of the Transferred Subsidiaries;
(viix) terminate any Consumables Business Employees (except as provided for in the Reorganization or for cause) or any Process Business Employee or hire any new Consumables Business Employees, or terminate any other employees of the Process Business to the extent the Company would become incapable of adequately delivering the transition services contemplated by Section 2.15.1(b);
(x) issue, issue deliver, sell, pledge or transfer or authorize or propose the issuance, delivery, sale, pledge or transfer of, any shares of capital stock or rights to purchase the capital stock of any of the Transferred Subsidiaries, any Voting Debt or any securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any such shares or Voting Debt, or enter into any agreement with respect to any of the foregoing;
(viixi) transfer other than cash dividends, (A) declare or pay any dividends on or make other distributions (whether in cash, stock or property or any combination thereof) in respect of any of the capital stock of the Transferred Subsidiaries, (B) split, combine or reclassify any of the capital stock of the Transferred Subsidiaries, or (C) repurchase, redeem or otherwise acquire, or permit the Subsidiaries to purchase, redeem or otherwise acquire, any shares of the capital stock of the Transferred Subsidiaries or any securities convertible into or exercisable or exchangeable for any shares of the capital stock of the Transferred Subsidiaries; provided, however, that no cash dividends may be paid which would result in the Transferred Subsidiary having less than $300,000 in cash or cash equivalents as of the Closing Date;
(xii) transfer, abandon or grant any material right under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property used in the BusinessProperty, or modify any existing right with respect thereto, except to the extent that the Company’s sale or disposition of Inventory in the ordinary course of business consistent with past practice constitutes the grant of an implied license or an exhaustion of remedies under the Intellectual Property;
(viii) grant or extend any power of attorney relating to the Business;
(ixxiii) enter into or amend any collective bargaining agreement or union contract or other agreement covering the Consumables Business EmployeesEmployees or the Process Business Employees or enter into any negotiations for the purposes of entering into any such agreement, except as required by applicable Law, Governmental Authority or any Company Plan;
(xxiv) effectuate a “plant closing,” “mass layoff” or other similar triggering event as those terms are defined in WARN or any other applicable Law, affecting in whole or in part any site of employment, facility, operating unit or employee of the Consumables Business or any of the Transferred Subsidiaries or any Process Business Employee;
(xv) (A) institute, settle or agree to settle any Proceeding by or before any Governmental Authority that creates or imposes any material continuing obligation or restriction on the Consumables Business or the Acquired Transferred Process Operations or would otherwise constitute an Assumed Liability or (B) waive, release or relinquish any material claims or rights relating to the Consumables Business or the Transferred Process Operations or the Transferred Assets;
(xixvi) modifyamend or propose to amend the certificate of incorporation, change by-laws, articles of association, memorandum of association or otherwise alter in any material respect the fundamental nature other organizational documents of the Business as presently conductedTransferred Subsidiaries or enter into, or permit any of the Transferred Subsidiaries to enter into a reduction of capital, a plan of consolidation, a scheme of arrangement, merger or reorganization with any Person;
(xiixvii) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or reorganization or resolutions providing for or authorizing the foregoing, other than the Reorganization or a plan of liquidation pursuant to which no formal actions are taken in furtherance of the implementation or completion of such liquidation, other than the approval of such plan, prior to the Closing Date;
(xviii) incur any capital expenditures in excess of $5,000 individually or $50,000 in the aggregate relating to the Consumables Business or the Transferred Process Operations;
(xix) make or permit any material change to its accounting methods or principles, except as required by changes in GAAP as concurred in by the Company’s independent auditors;
(xx) enter into any agreement with a Related Person relating to the Consumables Business or the Transferred Process Operations;
(A) accelerate the delivery or sale of products or (B) offer discounts or price protection on the sale of products or premiums on the purchase of raw materials that are, in the case of this clause (B), greater on an absolute or proportionate basis than the Company’s past practice;
(xxii) (A) purchase, order or otherwise acquire Inventory unless such inventory is (1) necessary to meet a delivery obligation to a customer prior to the Closing Date or (2) necessary to meet a required customer support or service or (B) write down the value of any Inventory or Transferred Asset, except as would affect solely may be required by GAAP;
(xxiii) (A) make, rescind or change any Tax election, annual Tax accounting period or method of Tax accounting, (B) settle or compromise any Tax claim or assessment, (C) file any amended Tax Return or (D) surrender any right to claim a Tax refund, in each case, with respect to any of the Technology Transferred Subsidiaries;
(xxiv) amend, modify or alter the Rights Agreement, dated as of May 24, 2004, between the Company and U.S. Stock Transfer Corporation, as Rights Agent, or take any action to exempt any third Person from all or any provisions thereof;
(xxv) with respect to the Process Business, accelerate the shipment of backlog or the delivery of products fabricated or manufactured for delivery to customers, or delay the payment of accounts payable or the performance of customer service, warranty and support obligations other than in the ordinary course of business; or
(xiiixxvi) otherwise commit to do, or take any action or omit to take any action that would result in, any of the foregoing.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Argonaut Technologies Inc)
