Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following: (i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity; (ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement; (iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity; (iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person; (v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000; (vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities; (vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices; (viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law; (ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity; (x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity; (xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000; (xii) enter into or forgive any loan to employees, directors, or consultants; (xiii) enter into any new collective bargaining agreement or agreement with a trade union; (xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law; (xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity; (xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect; (xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract; (xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum; (xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights; (xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices; (xxi) license or permit any rights to lapse in any Material Azur IP Rights; (A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date; (xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person; (xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or (xxv) agree or commit to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Azur Pharma LTD), Merger Agreement (Jazz Pharmaceuticals Inc)
Conduct of the Business. Azur agrees(a) Except as otherwise contemplated by this Agreement, the other Transaction Documents or the Real Estate Reorganization Documents, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except required by applicable Law or as set forth in Section 5.4 5.01 of the Azur Company Disclosure ScheduleLetter, from the date hereof to the Closing, unless the Required Holders otherwise consent thereto in writing, the Company and its Subsidiaries shall, subject to actions taken in response to the COVID-19 virus (other than any actions prohibited by Section 5.01(b)), conduct their respective businesses in all material respects in the ordinary course of business and shall use commercially reasonable efforts to preserve the relationships of the Company and its Subsidiaries with their material customers, material suppliers, employees and others having material relationships with the Company and such Subsidiaries and maintain the business operations, organization and goodwill of the Company.
(b) Without limiting the generality of Section 5.01(a), except as otherwise expressly required by this Agreement, as contemplated set forth in Schedule 1Section 5.01 of the Company Disclosure Letter, or, solely with respect to clause (v) below, as required by this Agreement or applicable Law, from the Related Agreementsdate hereof to the Closing, as reasonably necessary to effect unless the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as Required Holders otherwise agreed to consent thereto in writing by Jazz (such agreement consent not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities Company shall conduct its business and operations solely in the ordinary course of business and consistent with past practices andnot, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities its Subsidiaries not to, directly or indirectly do, or commit to do, any of the followingindirectly:
(i) establish a record date for, declare, accrue, set aside for payment or pay make payment in respect of, any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell upon any shares of capital stock of the Company;
(ii) redeem, repurchase or other equity interests in otherwise acquire any Azur Group Entity, or any securities convertible into any such shares of the Company’s capital stock or other equity or voting interests, or any rights, warrants or options to acquire any such shares of its capital stock or other equity interestsor voting interests of the Company or any of its Subsidiaries, except with respect other than repurchases of capital stock in the ordinary course of business pursuant to exercise any Company Plan (or agreement thereunder) in effect as of Azur Options outstanding prior to the date of this Agreementhereof;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group EntityCompany Charter Documents;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entityauthorize, recapitalizationissue, reclassification of shares, stock split, reverse split combine, subdivide or similar transaction with respect to each Azur Group Entityreclassify any capital stock, or make any investment in any equity securities of any other Personexercisable for, including any joint ventureexchangeable for or convertible into capital stock, or acquire the stock other equity or all or substantially all voting interests of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, Company other than in each case (A) sales the authorization and issuance of inventory the Series A-1 Preferred Stock in accordance with this Agreement and equipment the Series A-1 Certificate of Designation and the authorization of any Conversion Shares, (B) the authorization and issuance of the Series A Preferred Stock in accordance with this Agreement and the Series A Certificate of Designation and the authorization of any Conversion Shares and (C) issuances of capital stock, or securities exercisable for, exchangeable for or convertible into capital stock of the Company (x) to newly-hired or newly-promoted employees or consultants consistent with past practice or (y) to any Participant in the ordinary course of business and consistent with past practicespursuant to any Company Plan (or agreement thereunder) in effect as of the date hereof;
(v) change any of the methods of accounting, accounting practices or (B) not individually policies in excess any material respect of $500,000the Company or any of its Subsidiaries, other than such changes as required by GAAP or a Governmental Entity;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severancebetween the Company or its Subsidiaries, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreementone hand, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit and any of the assets owned Company’s directors (including director nominees or used by it to become bound by candidates), officers or stockholders (in their capacity as such), on the other hand, including any contract that is stockholder agreement, investor rights agreement, board representation or would constitute a Material board nomination agreement or any similar Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach the case of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filingofficers, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practicespractice in connection with such officer’s employment or termination of employment or (B) if such election, adoption, change, amendment, agreement, settlement, surrender, consent with newly-hired or newly-promoted officers consistent with past practice; (y) take or omit to take any other action would have that could reasonably be expected to result in a modification to the effect of increasing the Tax liability composition of the Azur Group Entities Board; or (z) grant any consent rights with respect to any actions by the Jazz Group Entities for Company or its Subsidiaries to any period ending after stockholder that would reasonably be expected to limit, alter or modify in any material respect the rights that the Investors are expected to have following the Closing Date or decreasing any Tax attribute under the Registration Rights Agreement and the Certificates of any Azur Group Entity or the Jazz Group Entities existing on the Closing DateAmendment;
(xxiiivii) lend money merge or consolidate the Company or any of its Subsidiaries with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, recapitalization or other reorganization of the Company or any of its Subsidiaries, in each case other than the merger or consolidation of the Company’s Subsidiaries with other Subsidiaries of the Company or the liquidation or dissolution of immaterial Subsidiaries of the Company.
(viii) (A) fail to timely file any material Tax Return required to be filed (after taking into account any extensions) by the applicable entity, (B) prepare any material Tax Return on a basis inconsistent with past practice, (C) fail to timely pay any material Tax that is due and payable by the applicable entity, (D) settle or compromise any material Tax Contest, (E) make, revoke or change any material Tax election, (F) file any material amended Tax Return, (G) surrender any claim for a refund of a material amount of Taxes, (H) consent to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) extension or guarantee the indebtedness waiver of any Personlimitation period with respect to any material claim or assessment for Taxes, (I) enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local, or non-U.S. law) with respect to a material amount of Taxes, or (J) adopt or change any material Tax accounting principle, method, period or practice;
(xxivix) fail to make a timely submission either required or reasonably deemed appropriate by the Company in connection with the Transactions under the Securities Act or the Exchange Act;
(x) fail to make a timely submission either required or reasonably deemed appropriate by the Company in connection with the Real Estate Reorganization under any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionapplicable Law; or
(xxvxi) agree agree, authorize, resolve or commit recommend, whether in writing or otherwise, to do do, or take any action reasonably likely to lead to or result in, any of the foregoing.
Appears in 2 contracts
Samples: Investment Agreement (Albertsons Companies, Inc.), Investment Agreement (Albertsons Companies, Inc.)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except as set forth in Section 5.4 Each of the Azur Disclosure Schedule, Company and Parent covenants and agrees that:
(a) Except as expressly contemplated in Schedule 1, as required by this Agreement or the Related Additional Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreementsrequired by applicable Law, as set forth on Schedule 6.1(a), or as otherwise agreed consented to in writing (which shall not be unreasonably conditioned, withheld or delayed) by Jazz Parent, with respect to any deviation by the Company, or the Company, with respect to any deviation by Parent or Merger Sub, from the date hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (such agreement not the “Interim Period”), each party shall (i) conduct its business only in the ordinary course (including the payment of accounts payable and the collection of accounts receivable), consistent with past practices, (ii) duly and timely file all Tax Returns required to be filed (or obtain a permitted extension with respect thereto) with the applicable Taxing Authorities and pay any and all Taxes due and payable during such time period, (iii) duly observe and comply with all applicable Law and Orders, and (iv) use its commercially reasonable efforts to preserve intact in all material respects its business organization, assets, Permits (with respect to the Company only), properties, and material business relationships with employees, clients, suppliers, contract manufacturing organizations, contract research organizations and other third parties.
(b) Without limiting the generality of the foregoing, and except as expressly contemplated by this Agreement or the Additional Agreements, as required by applicable Law, or as set forth on Schedule 6.1(b), during the Interim Period, without the other party’s prior written consent (which shall not be unreasonably withheldconditioned, conditioned withheld or delayed), neither the Company nor Parent shall, or permit its Subsidiaries to:
(xi) each amend, modify, or supplement its articles of incorporation or bylaws or other organizational or governing documents except as contemplated hereby, or engage in any reorganization, reclassification, liquidation, dissolution, or similar transaction;
(ii) amend, waive any provision of, terminate prior to its scheduled expiration date, or otherwise compromise in any way or relinquish any material right under, (A) in the case of the Azur Group Entities shall conduct its business and operations solely Company, any Material Contract, or (B) in the case of Parent, any material contract, agreement, lease, license, or other right or asset of Parent;
(iii) other than in the ordinary course of business and consistent with past practices andbusiness, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a))modify, (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly doamend, or commit to doenter into any contract, any of the following:
(i) declareagreement, accruelease, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securitieslicense, or repurchasecommitment, redeem including for capital expenditures, that extends for a term of one year or otherwise acquire any shares more or obligates the payment by the Company or Parent, as applicable, of capital stock more than $200,000 (individually or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entityaggregate);
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment capital expenditures in any equity securities excess of any other Person, including any joint venture, $500,000 (individually or acquire in the stock or all or substantially all of the assets or rights of any other Person or any division of any other Personaggregate);
(v) sell, lease, license or otherwise dispose of any of its material assets, except pursuant to existing contracts or commitments disclosed herein or in the ordinary course of business;
(vi) solely in the case of the Company, sell, exclusively license, abandon, permit to lapse, assign, transfer, abandon, convey or otherwise dispose of any assetsCompany Owned IP;
(vii) solely in the case of the Company, permit any material Registered Owned IP to go abandoned or expire for failure to make an annuity or maintenance fee payment, or file any necessary paper or action to maintain such rights;
(viii) (A) pay, declare, or set aside any dividends, distributions or other amounts with respect to its capital stock or other equity securities, rights or property of any Azur Group Entity, other than dividends or distributions declared, set aside, or paid by any of the Company’s Subsidiaries to the Company or any Subsidiary that is, directly or indirectly, wholly-owned by the Company; (B) pay, declare or promise to pay any other amount to any stockholder or other equity holder in its capacity as such; or (C) amend any term, right or obligation with respect to any outstanding shares of its capital stock or other equity securities;
(ix) (A) make any loan, advance or capital contribution to, or guarantee for the benefit of, any Person; (B) incur any Indebtedness including drawings under the lines of credit, if any, other than (1) loans evidenced by promissory notes made to Parent as working capital advances as described in the Prospectus and (2) intercompany Indebtedness; or (C) repay or satisfy any Indebtedness, other than the repayment of Indebtedness in accordance with the terms thereof;
(x) suffer or incur any Lien, except for Permitted Liens, on its assets;
(xi) delay, accelerate or cancel, or waive any material right with respect to, any receivables or Indebtedness owed to it, or write off or make reserves against the same (other than, in the case of the Company, in the ordinary course of business);
(xii) merge or consolidate or enter a similar transaction with, or acquire all or substantially all of the assets or business of, any other Person, make any material investment in any Person, or be acquired by any other Person;
(xiii) terminate or allow to lapse any insurance policy protecting any of the Company Group’s or Parent’s, as applicable, assets, unless simultaneously with such termination or lapse, a replacement policy underwritten by an insurance company of nationally recognized standing having comparable deductions and providing coverage equal to or greater than the coverage under the terminated or lapsed policy for substantially similar premiums or less is in full force and effect;
(xiv) adopt any severance, retention, or other employee benefit plan or fail to continue to make timely contributions to each such plan in accordance with the terms thereof;
(xv) institute, settle or agree to settle any Action before any Authority, in each case in excess of $250,000 (exclusive of any amounts covered by insurance) or that imposes injunctive or other non-monetary relief on such party;
(xvi) except as required by U.S. GAAP, make any material change in its accounting principles, methods or practices;
(xvii) change its principal place of business or jurisdiction of organization;
(xviii) issue, redeem or repurchase any capital stock, membership interests or other securities, or issue any securities exchangeable for or convertible into any shares of its capital stock or other securities, other than (A) sales any redemption by Parent of inventory shares of Parent Common Stock and equipment Parent Units held by its public stockholders as contemplated by Section 6.5(f) and (B) any issuance of Company Common Stock in connection with the exercise of any option to purchase shares of Company Common Stock that are outstanding on the date hereof;
(xix) (A) make, change, or revoke any material Tax election; (B) change any method of accounting other than as required under U.S. GAAP or Public Company Accounting Oversight Board rules or requirements; (C) settle or compromise any material claim, notice, audit report or assessment in respect of Taxes; (D) enter into any Tax allocation, Tax sharing, Tax indemnity or other closing agreement relating to any Taxes; or (E) surrender or forfeit any right to claim a Tax refund;
(xx) enter into any transaction with or distribute or advance any material assets or property to any of its Affiliates, other than the payment of salary and benefits in the ordinary course;
(xxi) solely in the case of the Company, other than (A) as required by a Plan or (B) in the ordinary course of business consistent with past practice (it being understood and agreed, for the avoidance of doubt, that in no event shall the exception in this clause (B) be deemed or construed as permitting any member of the Company Group to take any action that is not permitted by any other provision of this Section 6.1(b)), (1) increase or change the compensation or benefits of any employee or service provider, (2) accelerate the vesting or payment of any compensation or benefits of any employee or service provider, (3) enter into, amend or terminate any Plan (or any plan, program, agreement or arrangement that would be a Plan if in effect on the date hereof) or grant, amend or terminate any awards thereunder, (4) fund any payments or benefits that are payable or to be provided under any Plan, (5) make any loan to any present or former employee or other individual service provider, other than advancement of expenses in the ordinary course of business consistent with past practices, or (B6) not individually in excess of $500,000;
(vi) incur any Indebtednessenter into, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or other agreement with a trade unionlabor union or labor organization;
(xivxxii) contribute any material amount to any trust or other arrangement funding any Benefit Planauthorize, except to the extent required by the existing terms of such Benefit Planrecommend, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreementpropose, or by applicable Law;
(xv) (A) adopt announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization recapitalization, reorganization, or other reorganization similar transaction involving it or any Subsidiary; or
(Bxxiii) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) otherwise agree or commit to do take, or cause to be taken, any of the actions set forth in this Section 6.1(b).
(c) Neither party shall (i) take or agree to take any action with the intent to cause any representation or warranty of such party to be inaccurate or misleading in any respect at, or as of any time prior to, the Closing Date, or (ii) omit to take, or agree to omit to take, any action with the intent to cause any such representation or warranty to be inaccurate or misleading in any respect at any such time.
(d) Notwithstanding the foregoing, the Company and Parent and their respective Subsidiaries shall be permitted to take any and all actions required to comply in all material respects with the quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or another Law, directive, guidelines or recommendations by any governmental authority (including the Centers for Disease Control and Prevention and the World Health Organization) in each case in connection with, related to or in response to COVID-19, including the CARES Act or any changes thereto, or any future epidemics, pandemics, or similar health emergencies.
Appears in 2 contracts
Samples: Merger Agreement (NaturalShrimp Inc), Merger Agreement (Yotta Acquisition Corp)
Conduct of the Business. Azur agrees, as to itself (a) From the date hereof until the earlier of the termination of this Agreement and its Subsidiaries, that, during the Pre-Closing PeriodDate, except (1) as set forth in Schedule 5.01, (2) if Parent will have consented (such consent, solely to the extent set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements5.01(b), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x3) each of as required by applicable Law, (4) with respect to an Interim Financing or (5) as otherwise expressly contemplated by this Agreement, the Azur Member will cause the Group Entities shall Companies to conduct its business and operations solely their business, in all material respects, in the ordinary course Ordinary Course of business Business, and consistent with past practices and, the Member shall cause the Group Companies to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use their respective commercially reasonable efforts to preserve intact the current business organization and ongoing operations of the Group Companies, maintain existing relations and goodwill with Governmental Authorities, employeessuppliers, customers, brokerslandlords, suppliers employees and other Persons creditors with which whom such Group Company has a relationship, and maintain the properties and assets of the Group Companies in their current state of repair and condition (excluding normal wear and tear).
(b) From the date hereof until the earlier of the termination of this Agreement and the Closing Date, except (v) as set forth in Schedule 5.01, (w) if Parent will have consented (such consent not to be unreasonably withheld, conditioned or delayed in respect of clauses (ix), (x), (xi), (xiv), (xvi), (xvii)(A), (xx), (xxi) and (xxii) (solely to the extent relating to one of the preceding clauses)), (x) as required by applicable Law, (y) with respect to an Interim Financing or (z) as otherwise expressly contemplated by this Agreement, the Member will not, and will not permit any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not Companies to, directly or indirectly do, or commit to do, any of the following:
(i) declareissue, accrue, set aside sell or pay deliver any dividend of the Company’s or make any other distribution in respect of Group Company’s equity securities or issue or sell any shares of capital stock or other securitiessecurities convertible into, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities ofoptions with respect to, or other ownership interests inwarrants to purchase or rights to subscribe for, any Azur of the Company’s or any other Group EntityCompany’s equity securities;
(ii) issuerecapitalize, deliverreclassify, pledgecombine, encumbersplit, sell subdivide or authorize to sell redeem, declare any shares of capital stock of or other equity dividend, purchase or otherwise acquire or otherwise make any change in, directly or indirectly, any Group Company’s equity interests in or make any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except change with respect to exercise of Azur Options outstanding prior to the date of this Agreementany Group Company’s capital structure;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the its Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group EntityDocuments;
(iv) effect or become a party to in the case of any Contract relating to a Competing Transaction with respect to each Azur Group EntityCompany, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any redemption or purchase of its equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Personinterests;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of create any assets, securities, rights or property of any Azur Group Entity, other than in each case new Subsidiary;
(vi) (A) sell, assign or transfer any material portion of its tangible assets (other than sales of inventory and equipment in the ordinary course Ordinary Course of business and consistent with past practicesBusiness), or (B) not individually in excess mortgage, encumber, pledge, or impose any Encumbrance upon any of $500,000;
(vi) incur any Indebtednessits assets, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesthan Permitted Liens;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, mergermerger or consolidation of any of the Group Companies;
(viii) sell, consolidationassign, restructuringtransfer or exclusively license any material patents, recapitalization trademarks, trade names or other reorganization or copyrights;
(Bix) enter into any contract, agreement or exercise any discretion providing for acceleration of payment arrangement that would be a Material Contract if entered into prior to the date hereof (other than a renewal or performance as a result of a change of control replacement of any Azur existing Material Contract that is expiring by its terms, so long as the terms and conditions of such renewal or replacement contract, agreement or arrangement, in the aggregate, are not materially less favorable to the Company or its applicable Subsidiary than the existing Material Contract);
(x) terminate, cause the termination of, amend or modify any Material Contract (other than the Credit Agreement, the ERA and the other Contracts contemplated thereby) in any material respect (other than in the Ordinary Course of Business), or waive or release any rights or claims thereunder;
(xi) pay, discharge or satisfy any material claims or liabilities other than in the Ordinary Course of Business, or fail to pay or otherwise satisfy (except if being contested in good faith) any material accounts payable, liabilities, or obligations when due and payable, in each case, other than liabilities or obligations due and payable under the Credit Agreement, the ERA or any other Contract contemplated thereby;
(xii) directly or indirectly, merge with or into, consolidate with or acquire any material asset out of the Ordinary Course of Business;
(xiii) make any capital contributions to, or investments in, or any advance or loan to, or acquire the securities of, any Person other than a wholly owned Subsidiary of the Company;
(xiv) make any capital expenditures or commitments therefor other than those reflected in the Company’s budget as of the date hereof as listed on Schedule 5.01(a)(xiv) hereto or in an amount not to exceed $250,000;
(xv) in the case of any Group EntityCompany, enter into any transaction with any of its directors, officers or employees outside the Ordinary Course of Business;
(xvi) renew except as required under the terms of any written agreement or enter into Company Employee Benefit Plan as in effect on the date hereof, (A) increase salaries, bonuses or other compensation or remuneration and benefits payable by a Group Company to any Contract of its employees, officers, directors or other service providers other than increases in base compensation in the Ordinary Course of Business; (B) increase the benefits provided to any Person under any Company Employee Benefit Plan; (C) hire or engage the services of any Person with annual base compensation in excess of $200,000; or (D) terminate or amend any non-compete Company Employee Benefit Plan or exclusivity provisions adopt any new arrangement for the benefit or welfare of any officer or employee, director or other service provider of any Group Company that would contractually restrict be a Company Employee Benefit Plan if it were in existence as of the date hereof (other than in conjunction with agreements or limit arrangements that are entered into in the operations Ordinary Course of any Azur Group Entity in any material respectBusiness with new hire employees);
(xvii) settle any Legal Proceeding if (A) enter into, or permit any of the assets owned or used by it to become bound amount payable by any contract that is or Group Company in connection therewith would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), exceed $200,000 or (B) modify in would be reasonably likely to have a material effect on the post-Closing operations of the business of any material respect, amend in Group Company or agree to any material respect injunctive or terminate any Material Contractother equitable relief;
(xviii) enter into cancel any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by material third-party Indebtedness owed to any Azur Group Entity in excess of $500,000 per annumCompany;
(xix) other than (A) recognize any labor union or enter into, modify, or amend any collective bargaining agreement or engage in connection any substantive communications with any actual labor union regarding any Party’s anticipated actions on or alleged breach of this Agreement or any Related Agreement or (B) after the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including Closing with respect to any Azur IP Rightssuch union;
(xx) in the case of any Group Company, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position or adopt any changemethod that is inconsistent with positions taken or methods used in preparing or filing similar Tax Returns in prior periods, other than as required by IFRSsettle or compromise any claim relating to Taxes, in its accounting policies, procedures or practicesotherwise settle any dispute relating to Taxes;
(xxi) license in the case of any Group Company, make, modify or permit revoke any rights income or other material election with respect to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any waiver or extension of time to assess or waiver of the limitation period applicable collect any Taxes payable by any Group Company, file any amended Tax Returns or fail to file for or otherwise surrender any Tax refund claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur any Group Entities during the Pre-Closing Period, do not exceed $1 millionCompany; or
(xxvxxii) agree agree, whether orally or commit in writing, to do any of the foregoing, or agree, whether orally or in writing, to any action or omission that would result in any of the foregoing.
(c) From the date hereof until the earlier of the termination of this Agreement and the Closing Date, without the prior written approval of Parent (which approval may be given or denied in Parent’s sole discretion), except as set forth in Schedule 5.01 or with respect to an Interim Financing, the Member shall not permit any Group Company to, directly or indirectly, declare or pay any cash dividend on, or make any cash payment on account of, the purchase, redemption, defeasance, retirement or other acquisition of, any of its capital stock or common shares, as applicable, or make any other cash distribution in respect thereof, either directly or indirectly.
(d) Nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct any Group Company’s operations prior to the Closing. Prior to the Closing, the Group Companies shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their operations.
Appears in 2 contracts
Samples: Master Transaction Agreement (RTI Surgical Holdings, Inc.), Master Transaction Agreement (Rti Surgical, Inc.)
Conduct of the Business. Azur agrees, The Company covenants and agrees as to itself and its Subsidiaries, Subsidiaries that, during from the Pre-Closing Perioddate of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement, including the matters set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 17.5, as required by this Agreement Law or to the Related Agreementsextent Parent shall otherwise consent in writing, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (which decision regarding any such agreement consent shall not to be unreasonably withheld, conditioned or delayed):
(a) the Company shall, (x) and shall cause each of its Subsidiaries to, conduct their businesses in all material respects only in the ordinary and usual course consistent with past practice and each of the Azur Group Entities Company and its Subsidiaries shall conduct use its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use respective commercially reasonable efforts (i) to preserve its business organization intact and maintain its existing relations and goodwill with Governmental Authorities, employees, customers, brokerssuppliers, suppliers distributors, creditors, lessors, employees and other Persons business associates, (ii) to maintain and keep material properties and assets in good repair and condition and free from all Liens and encumbrances except Permitted Liens, (iii) to maintain in effect all material governmental Permits pursuant to which it currently operates; and (iv) to timely file, without regard to extensions available under Rule 12b-25 of the Exchange Act, all filings with which the SEC; and
(b) the Company shall not, and shall not permit any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not its Subsidiaries to, directly or indirectly do, or commit to do, any of the following:,
(i) issue, deliver, sell, redeem, purchase, grant, pledge, transfer, subject to any Lien or otherwise dispose of, any shares of its or any Subsidiary’s capital stock or any rights, options, warrants or other securities of the Company or any of its Subsidiaries (other than upon conversion of any of the Notes or the exercise of Company Options outstanding on the date hereof);
(ii) effect any recapitalization, reclassification, stock dividend, stock split or like change in its capitalization;
(iii) amend its or any of its Subsidiaries’ certificates or articles of incorporation or bylaws (or equivalent organizational documents);
(iv) amend any term of any capital stock of the Company or any of its Subsidiaries (in each case, whether by merger, consolidation or otherwise);
(v) declare, accrue, set aside or pay any dividend dividends on, or make any other distribution distributions (whether in cash, stock, property or otherwise) in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests inenter into any agreement with respect to the voting of, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, the Company or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entityits Subsidiaries, other than in each case (A) sales dividends and distributions by a direct or indirect wholly owned Subsidiary of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000Company to its parent;
(vi) incur take any Indebtednessaction that would result in any amendment, enter into modification or change of any new term of, or amend existing facilities relating to Indebtednessmaterial default under, issue any indebtedness of the Company or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesof its Subsidiaries;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of or agreement of, or resolutions providing for or authorizing, the complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries;
(viii) incur any capital expenditures or any obligations or liabilities in respect thereof, except for those contemplated by the capital expenditure budget for the Company and its Subsidiaries set forth in Section 6.1(b)(viii) of the Company Disclosure Letter;
(ix) sell, lease, license, pledge, transfer, subject to any Lien or otherwise dispose of any of its material assets or properties except (A) sales of inventory or used equipment in the ordinary course of business consistent with past practice, (B) enter into the incurrence of Permitted Liens in the ordinary course of business consistent with past practice, (C) any agreement license or exercise any discretion providing for acceleration disposition of payment Company Intellectual Property Rights in the ordinary course of business, or performance as a result of a change of control of any Azur Group Entity(D) pursuant to existing Contracts or Government Contracts;
(xvix) renew dispose of, grant, or enter into permit to lapse any Contract with Company Intellectual Property Rights, or dispose of or disclose to any non-compete or exclusivity provisions that would contractually restrict or limit the operations Person, other than representatives of Parent, any Azur Group Entity in any material respecttrade secret;
(xviixi) except as (A) enter intocontemplated by this Agreement, (B) required by applicable Law or permit (C) required by an Employee Benefit Plan or Contract currently binding on the Company or its Subsidiaries, (1) increase or commit to increase, in any manner, the amount of compensation (including any equity or equity-based awards) or fringe benefits of or pay any bonus to any director, officer, employee or consultant of the assets owned Company or used by it to become bound by any contract that is or would constitute a Material ContractSubsidiary of the Company, except in the ordinary course of business, consistent with past practice (other than Contracts specifically granting equity or equity-based awards) and except as relating to actions falling with the exceptions to the covenants set forth in clauses newly hired non-officer employees whose annual compensation per employee is less than $125,000 (veach, a “New Hire”), (xi2) xxxxx xxxxxxxxx or termination pay to any director, officer, employee or consultant of the Company or any Subsidiary of the Company, except with respect to New Hires or any existing non-officer employee to whom less than three months of severance or termination pay is to be provided, (xxiv3) of this Section 5.4(a)make any increase in or commitment to increase, or (B) modify in any material respect, any benefits (including severance or termination pay) provided under any Employee Benefit Plan (including any severance plan), adopt or amend (except as reasonably determined by the Company to be required by applicable Law, including modifications that are necessary or desirable to comply with Section 409A of the Code) or make any commitment to adopt or amend any Employee Benefit Plan or make any contribution, other than regularly scheduled contributions, to any Employee Benefit Plan, (4) waive any stock repurchase rights, accelerate, amend or change the period of exercisability of Company Options, or reprice any Company Options or authorize cash payments in exchange for any material respect or terminate any Material Contract;
Company Options, (xviii5) enter into any employment or indemnification agreement with any director, officer, employee or consultant of the Company or any Subsidiary of the Company or enter into any collective bargaining agreement, or (6) take any action to fund or in any way secure the payment of compensation or benefits under any Employee Benefit Plan; in the event the consent of Parent is required under this Section 6.1(b)(xi), the Company shall contact Xxxxx Xxxxxxxx or Xxxx Xxxxxx at Parent and Parent shall respond to such request for consent within two business days or the Company may proceed with the action requested;
(xii) make any change in any method of accounting principles, method or practices, except for any such change required by reason of a concurrent change in GAAP or Regulation S-X under the Exchange Act (as authorized by the Company’s independent auditor);
(xiii) enter into any Contract or relinquish or terminate any Contract or other right, in any individual case with an annual value in excess of $500,000 or an aggregate value in excess of $2,500,000, other than in the ordinary course of business consistent with past practices;
(xiv) enter into any Government Contract or relinquish or terminate any Government Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annumpractices;
(xixxv) other than (A) immaterial or de minimis provisions or covenants, agree to any exclusivity, non-competition or similar provision or covenant restricting the Company or any of its Subsidiaries from competing in connection any line of business or with any actual Person or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA area or similar filing, commence engaging in any activity or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, business (including with respect to the development, manufacture, marketing or distribution of their respective products or services), or pursuant to which any Azur IP Rightsbenefit or right is required to be given or lost as a result of so competing or engaging, or which would have any such effect on Parent or any of its Affiliates after the consummation of the Offer or the Effective Time;
(xxxvi) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make change any change in Tax accounting methods, policies or practices of the Company or any annual accounting period or adopt or change a method of accounting for Tax purposes, its Subsidiaries except as required by applicable a change in Law, (B) make make, revoke, or change amend any material Tax electionelection of the Company or any of its Subsidiaries, or with respect to the assets of the Company or any of its Subsidiaries, (C) file or amend any amended Tax Return or claim for refund of the Company or any of its Subsidiaries, or with respect to the assets of the Company or any of its Subsidiaries, or (D) other than as otherwise set forth in Section 6.1(b)(xvi) of the Company Disclosure Letter, (1) enter into any closing agreement, settle agreement affecting any material Tax claim liability or assessment relating to refund of the Company or any of its Subsidiaries, or with respect to the Azur Group Entitiesassets of the Company or any of its Subsidiaries, surrender (2) settle or compromise any right to claim a material Tax liability or refund of Taxesthe Company or any of its Subsidiaries, or consent with respect to any extension or waiver the assets of the limitation period applicable to Company or any of its Subsidiaries, or (3) extend or waive the application of any statute of limitations regarding the assessment or collection of any material Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities Company or any of its Subsidiaries, or with respect to the Jazz Group Entities for assets of the Company or any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Dateits Subsidiaries;
(xxiiixvii) lend money other than as set forth in Section 6.1(b)(xvii) of the Company Disclosure Letter, institute, settle, or agree to settle any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) material Proceeding pending or guarantee the indebtedness of threatened by or before any Personarbitrator, court or other Governmental Entity;
(xxivxviii) make any capital expendituresacquisition of, except for capital expenditures thator investment in, when added to all assets or stock (whether by way of merger, consolidation, tender offer, share exchange or other capital expenditures made on behalf activity) in any Person that is not a wholly owned Subsidiary of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionCompany; or
(xxvxix) authorize, resolve, commit or agree or commit to do take any of the foregoingforegoing actions.
Appears in 2 contracts
Samples: Merger Agreement (United Industrial Corp /De/), Merger Agreement (Textron Inc)
Conduct of the Business. Azur agrees, The Company covenants and agrees as to itself and its Subsidiaries, Subsidiaries that, during from the Pre-Closing Perioddate of this Agreement and continuing until the Effective Time, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as expressly contemplated in Schedule 1or permitted by this Agreement, as required by this Agreement Law or to the Related Agreementsextent Parent shall otherwise consent in writing, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (which decision regarding any such agreement consent shall not to be unreasonably withheld, conditioned or delayed), :
(xa) each of the Azur Group Entities Company shall conduct its business and operations solely in all material respects only in the ordinary and usual course of business and consistent with past practices and, to the extent consistent therewith (therewith, it and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will its Subsidiaries shall use their respective commercially reasonable efforts to (i) subject to prudent management of workforce needs and ongoing programs currently in force, preserve its business organization intact and maintain its existing relations and goodwill with Governmental Authorities, employees, customers, brokerssuppliers, suppliers distributors, creditors, lessors, employees and other Persons business associates, (ii) maintain and keep material properties and assets in good repair and condition and (iii) except in connection with the FDA OAI Matter, maintain in full force and effect all material governmental Permits pursuant to which the Company or any of its Subsidiaries currently operates;
(b) the Azur Group Entities has significant business relations Company shall not, and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each permit any of the Azur Group Entities not its Subsidiaries to, directly or indirectly do, or commit to do, any of the following:
(i) issue, sell or redeem any shares of its or its Subsidiary’s capital stock, (ii) issue, sell or redeem any securities convertible into, or options with respect to, warrants to purchase, or rights to subscribe for, any shares of its or its Subsidiary’s capital stock (other than the issuance of Company Common Stock pursuant to the terms of the Company ESPP or upon the exercise of Company Options or pursuant to terms of Company RSUs granted prior to the date hereof under the Company Equity Plans), (iii) to amend or terminate any Company Equity Plan, (iv) effect any recapitalization, reclassification, stock dividend, stock split or like change in its capitalization, (v) amend its or its Subsidiary’s certificate or articles of incorporation or bylaws (or equivalent organizational documents), (vi) make any acquisition of, or investment in, assets or stock (whether by way of merger, consolidation, tender offer, share exchange or other activity), (vii) declare, accrue, set aside or pay any dividend or make distribution payable in cash, stock, property or otherwise, except for the payment of dividends or distributions to the Company or any of its Subsidiaries by a Subsidiary of the Company, (viii) merge or consolidate with any person (other distribution in respect than mergers among wholly owned Subsidiaries of any shares of capital stock or other securitiesthe Company and mergers between the Company and its wholly owned Subsidiaries), or repurchase(ix) except in connection with the FDA OAI Matter, redeem enter into any agreement or arrangement that limits or otherwise acquire restricts the Company or any shares of capital stock its Subsidiaries or other securities ofany of their respective affiliates or any successor thereto from engaging or competing in any line of business or in any geographic area which agreements or arrangements would, individually or other ownership interests inin the aggregate, any Azur Group Entityreasonably be expected to have a Material Adverse Effect;
(iic) issueexcept for transactions among the Company and its Subsidiaries or as otherwise provided in the Company Disclosure Letter, deliver, pledge, encumber, sell not incur or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except become contingently liable with respect to exercise any material indebtedness for borrowed money other than borrowings in the ordinary course of Azur Options outstanding prior business;
(d) the Company shall not enter into or amend any employment, severance or change in control agreement with respect to termination of employment or other similar arrangements or agreements with any directors, executive officers or employees, except (i) pursuant to previously existing contractual arrangements or policies, (ii) pursuant to agreements entered into with a person who is not already an employee and is hired or promoted by the Company or one of its Subsidiaries after the date of this Agreement in the ordinary course of business, or (iii) for any amendment that is necessary or advisable to comply with Section 409A of the Code without materially increasing the benefits provided to any Person;
(e) the Company shall not (i) materially increase the salary or monetary compensation of any directors, executive officers or employees whose current annual base salary is in excess of $150,000 (“Key Employee”), except (A) for increases in the ordinary course of business (but in no event shall (1) the aggregate increase in base salary for Key Employees exceed 5% of the aggregate base salary paid to such Key Employees in the year ended December 31, 2005 or (2) the increase of any Key Employee’s base salary exceed 10% of such Key Employee’s base salary as of the date of this Agreement, except in connection with the assumption by such Key Employee of new or additional responsibilities), (B) pursuant to previously existing contractual arrangements, (C) to respond to offers of employment made by third parties or (D) as set forth on Section 5.1(e) of the Company Disclosure Letter or (ii) establish, adopt, enter into or materially amend any collective bargaining agreement;
(f) the Company shall not accelerate, amend or change the period of exercisability or vesting of options, restricted stock, restricted stock unit or similar awards under any Company Equity Plan or authorize cash payments in exchange for any options or other awards granted under any of such plans except as required by the terms of such plans or any related agreements in effect as of the date of this Agreement;
(iiig) amend except in connection with the FDA OAI Matter, the Company shall not waive, release, assign, settle or otherwise alter (compromise any material claims, or propose any amendment material litigation or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entityarbitration;
(ivh) effect the Company shall not adopt, enter into or become a party amend to any Contract relating to a Competing Transaction with respect to each Azur Group Entitymaterially increase benefits, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entityliability, or make any investment in any equity securities obligations of any other Personthe Employee Benefit Plan or to accelerate the payment of benefits under any Employee Benefit Plan, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
except (vi) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practicesbusiness; (ii) as involves any such then existing plans, agreements, trusts, funds or arrangements of any company acquired after the date hereof as permitted by this Agreement; or (Biii) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any the Employee Benefit Plan Plans or any Contract with an Independent Contractor pursuant to existing contractual arrangements or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group EntityAgreement;
(xi) enter into any Contract pursuant to which any Azur Group Entity may become obligated to except as set forth on Section 5.1(i) of the Company Disclosure Letter, the Company shall not make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entitycapital expenditures;
(xij) terminate any employee other than for cause (in which case Azur except as set forth on Section 5.1(j) of the Company Disclosure Letter, the Company shall first consult with Jazz), not make or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute change any material amount to any trust or other arrangement funding any Benefit PlanTax election, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigationclaim, notice, audit report or waiveassessment in respect of Taxes, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual Tax accounting period or period, adopt or change a any method of accounting for Tax purposesaccounting, except as required by applicable Law, (B) make or change file any Tax election, (C) file or amend any amended material Tax Return or unless a copy of such Tax Return has been first delivered to Parent for its review and consent (Dwhich consent shall not be unreasonably withheld) at a reasonable time prior to filing, enter into any closing tax allocation agreement, settle any Tax claim tax sharing agreement, tax indemnity agreement or assessment closing agreement relating to any of the Azur Group Entitiesmaterial Tax, surrender any right to claim a refund of Taxesmaterial Tax refund, or consent to any extension or waiver of the limitation statute of limitations period applicable to any material Tax claim or assessment relating assessment, or agree or commit to take any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Dateforegoing actions;
(xxiiik) lend money the Company shall not permit or cause any Subsidiary to take any person of the actions listed in Section 5.1(b) — (except for business expenses to its current employees in the ordinary course of business and consistent with past practicesj) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of such actions; or
(l) the foregoingCompany shall not agree in writing or otherwise to take any of the actions listed in Section 5.1(b) — (k).
Appears in 2 contracts
Samples: Merger Agreement (Andrx Corp /De/), Merger Agreement (Watson Pharmaceuticals Inc)
Conduct of the Business. Azur agrees(a) From the date hereof until the earlier to occur of the Closing Date and such time as this Agreement is terminated in accordance with Article VIII, as the Company shall, and shall cause its Subsidiaries to itself (i) carry on its and its Subsidiaries, that, during the Pre-Closing Period, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary ’ respective businesses according to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the their ordinary course of business and consistent with past practices and, practice; provided that the Company may use all available cash to repay any Indebtedness of the Company or its Subsidiaries prior to the extent consistent therewith Closing and may pay dividends or distributions between and among the Company and its Subsidiaries and (and subject to the restrictions set forth in this Section 5.4(a)), (yii) each of the Azur Group Entities will use their commercially reasonable efforts to preserve preserve, in all material respects, their respective properties, business and maintain existing relations and goodwill relationships with Governmental AuthoritiesEmployees, employeessuppliers, customers, brokers, suppliers customers and other Persons with which whom the Company or any of its Subsidiaries has material commercial dealings.
(b) From the Azur Group Entities has significant business relations date hereof until the earlier to occur of the Closing Date and such time as this Agreement is terminated in accordance with Article VIII, except as otherwise explicitly required by this Agreement, consented to in writing by the Buyer (for purposes of subsections (xvi), (xviii) and (zxix) subject to applicable Law as agreed hereof, which consent shall not be unreasonably withheld, delayed or conditioned) or set forth in good faith by counsel to JazzSection 6.01(b) of the Company Disclosure Schedules, Azur the Company shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, permit any of the followingits Subsidiaries to:
(i) issue, sell or deliver any of its capital stock or the capital stock of any of its Subsidiaries or issue or sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its capital stock or the capital stock of any of its Subsidiaries;
(ii) effect any recapitalization, merger, reclassification, equity dividend, equity split or like change in its capitalization or the capitalization of any of its Subsidiaries;
(iii) declare, accrueset aside, set aside make or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise the Company or any of Azur Options outstanding prior to its Subsidiaries (other than dividends or distributions between and among the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group EntityCompany and its Subsidiaries);
(iv) effect liquidate, dissolve or become a party to wind-up the Company or any Contract relating to a Competing Transaction of its Subsidiaries;
(v) amend its or any of its Subsidiaries’ governing or organizational documents;
(vi) make any redemption or purchase of any of the Company’s capital stock or the capital stock of any of the Company’s Subsidiaries;
(vii) sell, assign, license or transfer any of the properties or assets of the Company or any of its Subsidiaries, except for sales of inventory in the ordinary course of business consistent with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entitypast practice;
(viii) make any capital investment in, or make any investment in any equity securities of any other Personmaterial loan to, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(vix) sellincur, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities assume or guarantee any debt securities;
Indebtedness (vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangementunder the Company’s existing revolving credit facility), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into or amend any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entitycollective bargaining agreement;
(xi) terminate increase the salary, compensation or benefits (including without limitation any employee other than for cause severance benefits) of any present or former director, officer or Employee, except as may be required by any Employee Benefit Plan or Contract as in effect on the date hereof (in which case Azur shall first consult with Jazz), or hire any employeeexcept, in either casethe case of Employees who are neither directors nor officers of the Company or any of its Subsidiaries, whose annual base compensation exceeds or would exceed $150,000in the ordinary course of business consistent with past practice);
(xii) establish, enter into into, adopt or forgive amend any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Employee Benefit Plan, except to the extent as may be required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xvxiii) change any method of accounting or accounting principles or practices, except for any change required by reason of a concurrent change in GAAP;
(Axiv) adopt a plan of complete or partial liquidation, dissolution, acquire (by merger, consolidation, restructuringstock or asset purchase or otherwise) any Person or any business (or portion or division thereof) or execute, recapitalization or other reorganization or (B) enter into or agree upon any agreement letter of intent, term sheet or exercise similar arrangement, whether binding or non-binding, to so acquire any discretion providing for acceleration of payment Person or performance as a result of a change of control any business (or portion or division thereof);
(xv) create, grant, assume, allow or suffer to be incurred any Lien (other than Permitted Liens) of any Azur Group Entitykind on any of its material properties or assets;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict constitute a Material Contract had it been entered into prior to the date hereof or limit the operations of any Azur Group Entity in terminate, amend, supplement or waive any material respectrights under any existing Material Contract (except for annual line reviews and related Contracts with existing customers of the Company and its Subsidiaries);
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in provide any material respect, amend discount in favor of any material respect customer or terminate any Material Contract;
(xviii) enter into any Contractsuppliers, other than in the ordinary course of business and consistent with past practices practices;
(xviii) institute outside of the ordinary course of business or settle any Proceeding or claim involving equitable or injunctive relief or a monetary payment of more than $100,000;
(xix) make any capital expenditures or commitments therefor except those reflected in the Company’s current budget and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rightsaggregate;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax electionelection (including any “check-the-box” election pursuant to U.S. Treasury Regulation Section 301.1101-3), (C) change an annual accounting period, adopt or change any accounting method, file or amend any Tax Return or (D) Return, prepare Tax Returns that are inconsistent with past practice, enter into any closing agreement, settle any Tax claim or assessment relating to or change any of the Azur Group Entitiesits respective financial, tax or accounting policies, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation limitations period applicable to any Tax claim or assessment relating to the Company or any Azur Group Entity of its Subsidiaries or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(xxi) with respect to any material Company Intellectual Property, (a) impair, abandon, or fail to diligently maintain such Company Intellectual Property, or (b) amend, waive, cancel or modify any rights in each case other than electionsor to such Company Intellectual Property; or
(xxii) enter into any Contract to do or engage in any of the foregoing.
(c) From the date hereof until the earlier to occur of the Closing Date and such time as this Agreement is terminated in accordance with Section 8.01, filingsthe Company shall, settlementsand shall cause its Subsidiaries to, closing agreements, extensions or waivers made conduct its cash management practices in the ordinary course of business consistent with past practicespractice (including, without limitation, with respect to the maintenance of normalized working capital balances and normalized inventory levels (taking into account seasonal fluctuations), making of capital expenditures (except those reflected in the Company’s current budget or as set forth in Section 6.01(b) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities Company Disclosure Schedules), absence of acceleration of collection of accounts receivable (whether by granting of discounts, credits, concessions, write-offs, modifications of terms or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees otherwise other than in the ordinary course of business and consistent with past practicespractice), timing of payment of accounts payable, accrued liabilities and other Liabilities and pricing and credit policies).
(d) Notwithstanding anything to the contrary herein, in the event that in connection with the consummation of the Closing the Buyer does not have access to sufficient cash to pay the full Estimated Purchase Price (or, if the Buyer shall otherwise request of the Company prior to the Closing), the Company’s Subsidiaries shall be permitted to effect the transfer of existing Cash and Cash Equivalents from such Subsidiaries to the Company by making dividends or guarantee other distributions to the indebtedness Company, paying-off amounts due to the Company on existing loans or other obligations, extending credit to the Company, the Company purchasing or leasing assets to such Subsidiaries or such other transactions as the Seller and the Buyer shall reasonably agree upon, with such method selected to minimize Tax and any other liabilities for the Company (each, a “Transfer”), but such Transfers shall only be permitted to the extent (x) necessary to enable the Buyer to meet its obligations to pay the Estimated Purchase Price upon consummation of the Closing (by, upon consummation of the Closing, causing the Company to distribute to the Seller the Cash and Cash Equivalents at the Company in partial satisfaction of the Estimated Purchase Price), and (y) any Tax liability arising from such Transfers shall not exceed the amount of the Company’s net operating losses within the meaning of Section 172 of the Code calculated at the time of such Transfer(s). Any Tax liability arising as a result of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of Transfer in accordance with the Azur Group Entities during the foregoing sentence shall not be a Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any Tax as defined herein and shall be a Tax liability of the foregoingCompany and its Subsidiaries not subject to indemnification by the Seller.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Griffon Corp), Stock Purchase Agreement (Ames True Temper, Inc.)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during Pending the Pre-Closing Period, except as set forth in Section 5.4 Merger. Between the date of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreementsearlier of (1) the Effective Time and (2) the date upon which Purchaser’s designees constitute a majority of the members on the Company Board pursuant to Section 7.3 (the “Control Date”), or as otherwise agreed to in writing by Jazz except (such agreement w) with the prior written consent of Parent (which shall not to be unreasonably withheld, conditioned withheld or delayed), (x) each as expressly contemplated by this Agreement, (y) as set forth in Section 6.1 of the Azur Group Entities Disclosure Letter or (z) as required in compliance with all applicable Laws, (i) the Company shall, and shall cause the Company Subsidiaries to, conduct its the businesses of the Company and the Company Subsidiaries only in the ordinary course of business and operations solely in a manner consistent with past practice; and (ii) the Company shall use commercially reasonable efforts to preserve substantially intact the business organization of the Company and the Company Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with its customers, suppliers, distributors, licensors, licensees and other persons with which the Company or any of the Company Subsidiaries has business relations. In addition, and not in limitation of the foregoing, except as (x) expressly contemplated by this Agreement, (y) set forth in Section 6.1 of the Disclosure Letter or (z) required in compliance with all applicable Laws, neither the Company nor any of the Company Subsidiaries shall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent (which shall not be unreasonably withheld or delayed):
(a) amend or otherwise change its Articles of Incorporation or Bylaws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock of the Company or any of the Company Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including any phantom interest and including any Company RSUs, Company SARs, Company Stock Options or voting securities), of the Company or any of the Company Subsidiaries, except for the issuance of Company Shares pursuant to exercises of the Company Stock Options or Company SARs or vesting of Company RSUs outstanding on the date hereof as disclosed in Section 4.3(b) in accordance with the terms of those Company Options, Company SARs or Company RSUs, as in effect on the date of this Agreement and, subject to Section 3.7(g), the issuance of Company Shares pursuant to the Company ESPP;
(c) transfer, lease, sell, pledge, license, dispose of or encumber any material assets or properties of the Company or any of the Company Subsidiaries, except in the ordinary course of business;
(d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (other than dividends or distributions made by a Company Subsidiary to the Company or another Company Subsidiary ), except as permitted under Section 6.1(b) above;
(e) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except (i) in accordance with agreements evidencing Company Stock Options, Company SARs, or Company RSUs or (ii) Tax withholdings and exercise price settlements upon the exercise of Company Stock Options or Company SARs or vesting of Company RSUs;
(f) (i) acquire, directly or indirectly (including by merger, consolidation, or acquisition of stock or assets or any other business combination), any corporation, partnership, other business organization or any division thereof or any other business, or any equity interest in any person; (ii) incur any indebtedness for borrowed money or issue any debt securities, or assume, guarantee or endorse, or otherwise become responsible for (contingently or otherwise), the obligations of any person, in each case, other than between the Company and any Company Subsidiary or between Company Subsidiaries; (iii) make any loans, advances or capital contributions, except for employee loans or advances for travel expenses and extended payment terms for customers, in each case subject to applicable Law and only in the ordinary course of business; (iv) make, authorize, or make any commitment with respect to (A) any single capital expenditure or other similar expenditure that is inconsistent with the budget set forth on Schedule 6.1 of the Disclosure Letter, except for (I) non-capital expenditures in the ordinary course of business and (II) leasehold improvements at any Company Leased Real Property that commenced prior to the date of this Agreement and are continuing in a manner materially consistent with the budget set forth on Schedule 6.1 of the Disclosure Letter and the conduct of such improvements prior to the date of this Agreement; (v) make or direct to be made any capital investments or equity investments in any entity, other than investments in any wholly-owned Company Subsidiary; or (vi) enter into or amend any Contract, commitment or arrangement with respect to any matter set forth in this Section 6.1(f);
(g) except as may be required by applicable Law or a Contract in effect on the date hereof, (i) increase the compensation payable or to become payable (including bonus grants) or increase or accelerate the vesting of any benefits provided, or pay or award any payment or benefit not required as of the date hereof by a Plan as existing on the date hereof and disclosed in Section 6.1(g) of the Disclosure Letter, to the directors or executive officers of the Company or, other than in the ordinary course of business, the other employees or service providers of the Company or any Company Subsidiary, (ii) grant any severance or termination pay or benefits to, or enter into any employment, severance, retention, change in control, consulting or termination Contract with, any director, officer or other employee or other service providers of the Company or of any Company Subsidiary, subject to Section 6.1(g)(iv) below, other than offer letters, employment agreements, or consulting agreements entered into in the ordinary course of business and consistent with past practices and, practice that are terminable at will and without material liability to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which Company or any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly doCompany Subsidiary, or commit separation and release agreements that provide immaterial severance pay to do, any of the following:
(i) declare, accrue, set aside non-officer employees or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment service providers in the ordinary course of business and consistent with past practicespractice, (iii) establish, adopt, enter into or amend any bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, Contract, trust, fund, policy or arrangement for the benefit of any director, officer or employee or other service providers (including the ESPP), except as permitted by this Agreement or as necessary to maintain Tax-qualified status or Tax-favored treatment, or (iv) hire, elect or appoint any officer or director;
(h) enter into any collective bargaining agreement, work council agreement, work force agreement or any other labor union Contract applicable to persons employed by the Company or any Company Subsidiary that would reasonably be expected to result in a material liability to the Company and the Company Subsidiaries, taken as a whole;
(i) except as publicly announced prior to the date hereof, announce, implement or effect any reduction in labor force greater than five percent (5%) of the total Company headcount, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of the Company or any Company Subsidiary, other than routine employee terminations;
(j) enter into a new line of business that (A) is material to the Company and the Company Subsidiaries taken as a whole, or (B) represents a category of revenue that is not individually discussed in excess Item 1 of $500,000the Company’s Annual Report on Form 10-K for the fiscal year ended January 3, 2010;
(vik) incur make, change or revoke any Indebtednessmaterial Tax election, adopt or change any accounting period or any material accounting method, file any amended Tax Return, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining closing agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreementmaterial Taxes, settle any material Tax claim or assessment relating to the Company or any of the Azur Group EntitiesCompany Subsidiaries, surrender any right to claim a refund of material Taxes, or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or any Azur Group Entity Company Subsidiary, or destroy or dispose of any books and records with respect to Tax matters relating to periods beginning before the Effective Time and for which the statute of limitations is still open or under which a record retention agreement is in place with a Governmental Authority;
(l) settle any material claim or other Action, or any material investigation, arbitration or mediation by or before any Governmental Authority;
(m) enter into any Contract or amendment that would be a Company Material Contract pursuant to clauses (i), (iii), (iv), (vii) or (x) of Section 4.17(a), amend or modify in each case any material respect in a manner that is adverse (taken as a whole) to the Company or any Company Subsidiary, or consent to the termination of, any Company Material Contract, or waive or consent to the termination of the Company’s or any Company Subsidiary’s material rights thereunder;
(n) enter into any Contracts (i) under which the Company or any Company Subsidiary grants or agrees to grant to any Third Party any assignment, license, release, immunity or other right with respect to any Company Intellectual Property (other than electionsnon-exclusive licenses of Software granted to customers in the ordinary course of business consistent with Company’s or any Company Subsidiary’s past practices), filings(ii) under which the Company or any Company Subsidiary establishes with any Third Party a joint venture, settlementsstrategic relationship, closing agreementsor partnership pursuant to which the Company agrees to develop or create (whether jointly or individually) any material Intellectual Property, extensions products or waivers made services, (iii) that will cause or require (or purport to cause or require) the Surviving Corporation or Parent to (A) grant to any Third Party any license, covenant not to xxx, immunity or other right with respect to or under any of the Intellectual Property or Intellectual Property Rights owned by Parent; or (B) be obligated to pay any royalties or other amounts, or offer any discounts, to any Third Party (other than, with respect to the Surviving Corporation and its Subsidiaries only, in connection with non-exclusive licenses of Software, or Contracts for licenses to or other rights to use Systems, entered into in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datepractice);
(xxiiio) lend money enter into or amend any Contract pursuant to which any person other party is granted, or that otherwise subjects the Company or any Company Subsidiary or Parent or any of its subsidiaries to, any non-competition, “most-favored nation,” exclusive marketing or other exclusive rights of any type or scope that materially restrict the Company or any Company Subsidiary or, upon completion of the Offer or any other Transaction, Parent or any of its subsidiaries, from engaging or competing in any line of business or in any location;
(p) enter into or amend or otherwise modify any Contract or arrangement with persons that are affiliates or are executive officers or directors of the Company, except for business expenses as otherwise permitted or required by this Agreement;
(q) commence any material Action (or any material arbitration or mediation by or before any Governmental Authority), except as otherwise permitted or required by this Agreement;
(r) delay the payment of any trade payables to its current employees vendors and other Third Parties or accelerate the collection of trade receivables and other receivables by offering discounts or otherwise, in each case outside the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxivs) make terminate, cancel, amend or modify any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf insurance coverage policy maintained by the Company or any of the Azur Group Entities during Company Subsidiaries that is not simultaneously replaced by a comparable amount of insurance coverage, other than with respect to the PrePlans set forth on Section 4.10(a) of the Disclosure Letter for which benefits are provided through insurance contracts;
(t) enter into, participate in, establish or join any new standards-Closing Periodsetting organization, do not exceed $1 millionuniversity or industry bodies or consortia; or
(xxvu) agree or commit otherwise make a commitment to do any of the foregoing. Notwithstanding the foregoing (but without limiting the foregoing), nothing in this Agreement is intended to give Parent or Purchaser, directly or indirectly, the right to control or direct the business or operations of the Company or the Company Subsidiaries at any time prior to the Effective Time. Prior to the Effective Time, the Company and the Company Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.
Appears in 2 contracts
Samples: Merger Agreement (Actel Corp), Merger Agreement (Microsemi Corp)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during (a) From the Pre-date hereof until the Closing PeriodDate, except (i) as set forth in Section 5.4 of the Azur Disclosure Scheduleon Schedule 6.03(a), (ii) as otherwise contemplated in Schedule 1or permitted by this Agreement, (iii) as required by this Agreement or the Related AgreementsLaw, (iv) as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed consented to in writing by Jazz Buyer (such agreement which consent shall not to be unreasonably withheld, conditioned or delayed), or (v) for the use of available cash to repay any Funded Debt and pay Transaction Expenses prior to the Closing, the Company shall (x) each use its commercially reasonable efforts to carry on the business of the Azur Group Entities shall conduct Company and its business and operations solely Subsidiaries in the ordinary course of business and consistent substantially in the same manner as previously conducted (provided that (i) no action by the Company or its Subsidiaries with past practices and, respect to the extent consistent therewith (and subject to the restrictions set forth in matters specifically addressed by any other provision of this Section 5.4(a)6.03(a) will be deemed a breach of this clause (x) of this Section 6.03(a), unless such action would constitute a breach of one or more of such other provisions, and (ii) the Company and its Subsidiaries' failure to take any action prohibited by clause (x) of this Section 6.03(a) will not be deemed a breach of this clause (x) of this Section 6.03(a)) and (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authoritiesnot, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities its Subsidiaries not to, directly or indirectly do, or commit to do, any of the following:
(i) declareissue, accruedeliver, set aside reissue or pay sell, dispose or pledge any dividend or make any other distribution in respect of any its shares of capital stock, any voting securities or any other equity interests or any options, warrants, convertible or exchangeable securities, subscriptions, stock appreciation rights or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entityequity-based compensation;
(ii) issuesell, delivertransfer, pledgelease, encumbermortgage, sell pledge or authorize otherwise subject to sell any shares Lien (other than Permitted Liens) any material portion of capital stock the assets or property (tangible or intangible) of or other equity interests in any Azur Group Entitythe Company and its Subsidiaries, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreementtaken as a whole;
(iii) amend create, incur, assume or otherwise alter (or propose guarantee any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, Funded Debt other than in each case (Ax) sales of inventory and equipment in the ordinary course of business pursuant to the Company's existing revolving credit facilities, (y) pursuant to arrangements solely among or between the Company and consistent with past practices, one or more of its direct or indirect wholly owned Subsidiaries or solely among or between its direct or indirect wholly owned Subsidiaries or (Bz) Funded Debt not individually in excess of $500,0002,500,000 that is fully prepayable and terminable by the Company at or prior to Closing;
(iv) enter into any Contract to make an acquisition (whether by merger, acquisition of stock or assets, or otherwise) of any business or line of business, other than entering into non-binding letters of intent for acquisitions in the ordinary course of business;
(v) modify or amend the organizational documents of the Company or any of its Subsidiaries;
(vi) incur make an election to change the status of the Company or any Indebtednessof its Subsidiaries (as a corporation, enter into any new partnership or amend existing facilities relating to Indebtednessdisregarded entity) for federal, issue state or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitieslocal income Tax purposes;
(vii) create except (A) to satisfy contractual obligations pursuant to Contracts as in effect on the date of this Agreement, (B) pursuant to the terms of the Plans as in effect on the date of this Agreement, (C) in connection with the annual salary and annual bonus review process conducted following the end of the Company's fiscal year, (D) in conjunction with new hires, promotions, internal transfers of employment and changes in job position or permit status, in each case for any employee whose annual base salary following such change is less than $175,000 (provided that any new compensation or benefits arrangements for newly hired, promoted or transferred employees shall have a value that is consistent with the creation past practice of making compensation and benefits available to newly hired, promoted or transferred employees, respectively, in similar positions) or (E) bonuses payable to certain officers and employees of the Company or any Lien of its Subsidiaries in connection with the consummation of the Transactions (other than a Permitted Lien) on which will be included as part of the Transaction Expenses), materially increase the salary payable by it to any of the assets Company's or its Subsidiaries' employees whose annual base salary is in excess of $175,000, or materially increase the coverage or benefits available under any Azur Group Entities severance pay, termination pay, deferred compensation, bonus or other than in the ordinary course of business and consistent with past practicesincentive compensation plan or arrangement;
(viii) except make any material change in the ordinary course of business and consistent with past practicesits accounting or Tax reporting methods, enter into principles or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), policies other than as required by Law;
(ix) except enter into a new Contract that would be required to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of be disclosed on Schedule 5.19 if it had been entered prior to the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or awardamend in a material manner, terminate, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute waive any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit rights under any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a)on, or (B) modify in any material respectrequired to be set forth on, amend in any material respect or terminate any Material Contract;
(xviii) enter into any ContractSchedule 5.19, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datepractice;
(xxiiix) lend money to cancel or compromise any person (debt or claim or waive or release any material right of the Company or any Subsidiary except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Personbusiness;
(xxivxi) make enter into any capital expendituresContract that materially restrains, except for capital expenditures thatrestricts, when added to all other capital expenditures made on behalf limits or impedes the ability of the Azur Group Entities during business, or the Preability of Buyer, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any Persons other than reseller Contracts or confidentiality and non-Closing Perioduse provisions in the ordinary course of business;
(xii) adopt a plan of liquidation, do not exceed $1 milliondissolution, merger, consolidation or other reorganization; or
(xxvxiii) agree authorize, agree, resolve or commit consent to do any of the foregoing.
(b) Nothing in this Section 6.03 is intended to result in the Unitholders, the Company or any of its Subsidiaries ceding control to Buyer of the Company's or any of its Subsidiaries' basic ordinary course of business and commercial decisions prior to the Closing Date.
Appears in 1 contract
Conduct of the Business. Azur agrees(a) From the date hereof until the first to occur of (i) the Closing and (ii) the termination of this Agreement, as the Company shall use its commercially reasonable efforts to itself conduct its and its Subsidiaries, that, during ’ businesses in the Pre-Closing Periodordinary course of business, except as set forth in Section 5.4 on the Covenants Exceptions Schedule.
(b) From the date hereof until the first to occur of (I) the Azur Disclosure ScheduleClosing and (II) the earlier termination of this Agreement, except (x) as otherwise contemplated in Schedule 1, as required by this Agreement or the Related Transaction Sale Agreements, (y) as reasonably necessary to effect set forth on the Reorganization Covenants Exceptions Schedule or (subject to and in accordance with this Agreement and the Related Agreements), or z) as otherwise agreed consented to in writing by Jazz the Purchaser (such agreement consent not to be unreasonably withheld, conditioned delayed or delayedconditioned), the Company shall, and shall cause its Subsidiaries:
(xi) each not (A) amend or propose to amend the respective certificates of incorporation or bylaws or other organizational documents of the Azur Group Entities shall conduct Company or any of its business Subsidiaries in any manner or (B) split, combine or reclassify the shares, capital stock or other equity interests of the Company or any of its Subsidiaries;
(ii) not issue, sell, pledge, transfer or dispose of, or agree to issue, sell, pledge, transfer or dispose of, any shares, capital stock or other equity interests of the Company or any of its Subsidiaries or issue any shares, capital stock or equity interests of any class or issue or become a party to any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to the issued or unissued shares, capital stock or other equity interests of the Company or any of its Subsidiaries (other than this Agreement and operations solely the agreements contemplated hereby), or grant any stock appreciation or similar rights;
(iii) not create any Liens on any assets, rights or properties (whether tangible or intangible) of the Company or any of its Subsidiaries, other than Permitted Liens;
(iv) not redeem, purchase or otherwise acquire any outstanding shares, capital stock or other equity interests of the Company or any of its Subsidiaries or declare or pay any non-cash dividend or make any other non-cash distribution to any Person other than the Company or one or more of its Subsidiaries on or prior to the Closing Date;
(v) not (A) grant to any employee of the Company or any of its Subsidiaries any increase in compensation or benefits, except (1) for pay increases, promotions, and bonuses made in the ordinary course of business and consistent or (2) as may be required by any applicable Law, collective bargaining agreement or other contract with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly dolabor organization, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, ; (B) increase the compensation payable to modify or establish any Employee, Independent Contractor, consultant Plan (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employeearrangement that would constitute a Plan, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salaryif adopted), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by Law, collective bargaining agreement or other contract with any labor organization, or the existing terms of such Benefit Planany Plan or contract; (C) terminate the employment of any employee in the position of vice president or above, trust other than for cause; (D) implement the discharge or layoffs of more than ten percent (10%) of the workforce at any single site; or (E) materially change the key management structure of the Company or any of its Subsidiaries, including the hiring of additional officers or the termination of existing executives or officers (other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Lawthan for cause);
(xvvi) (A) adopt a plan not sell, lease, transfer or otherwise dispose of, any owned property or assets of complete the Company or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned its Subsidiaries, except for any sale, license, lease, transfer or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than disposition in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annumbusiness;
(xixvii) not sell any Inventory or products in a manner other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practice, including with respect to pricing, discounting practices) if such election, adoptionbundling, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datesales volume and services levels;
(xxiiiviii) lend money to any person not (except for business expenses to its current employees A) materially accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business and consistent with past practicespractice, (B) materially delay or guarantee the indebtedness accelerate payment of any Personaccount payable in advance of its due date or the date such liability would have been paid in the ordinary course of business consistent with past practice; or (C) vary the Inventory practices of the Company or its Subsidiaries in any material respect from past practices;
(xxivix) not establish or acquire any Subsidiary;
(x) except for amendments in the ordinary course of business, not amend, cancel, waive any material rights under, or elect to terminate (except for a termination resulting from the expiration of a contract in accordance with its terms) any contract listed on the Contracts Schedule;
(xi) not acquire any business or Person, by merger or consolidation, purchase of assets or equity interests, or by any other manner, in a single transaction or a series of related transactions;
(xii) except in accordance with the capital budget of the Company and its Subsidiaries, not commit or authorize any commitment to make any capital expenditures in excess of two hundred fifty thousand dollars ($250,000) in the aggregate;
(xiii) not make any change in any method of accounting or auditing practice, including any working capital procedures or practices, other than changes required as a result of changes in GAAP or applicable Law;
(xiv) not make any loans, advances or capital contributions to, or investments in, any other Person other than loans, advances or capital contributions by the Company or any of its Subsidiaries (A) to any Subsidiary or (B) to any employee in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business;
(xv) not liquidate, dissolve or effect a recapitalization or reorganization with respect to the Company or any of its Subsidiaries;
(xvi) except as required to comply with Section 7.04(b), not (A) make any capital expendituresmaterial Income Tax election that is inconsistent with past practices, except for capital expenditures that(B) change any material Income Tax election, when added (C) change any annual Income Tax accounting period, (D) adopt or change any material method of Income Tax accounting, (E) file any amended Income Tax Return with respect to all other capital expenditures made on behalf any material Tax matter, (F) enter into any “closing agreement” with any Governmental Body with respect to any material Income Tax matter, (G) settle any claim or assessment in respect of a material amount of Income Tax, or (H) consent to any extension or waiver of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionlimitations period applicable to any material Income Tax claim or assessment; orand
(xxvxvii) agree not to authorize, or commit or agree to do take any of the foregoingaction described in this Section 7.01(b).
Appears in 1 contract
Samples: Stock Purchase Agreement (Intertape Polymer Group Inc)
Conduct of the Business. Azur agreesDuring the period commencing as of the date hereof, and prior to the earlier of the Closing and the termination of this Agreement in accordance with its terms, the Company (i) shall carry on the Business in the Ordinary Course in substantially the same manner as heretofore conducted (including, without limitation, pay the debts and Taxes of the Company when due (except upon mutual agreement of the Company, Parent and Purchaser), pay or perform other obligations when due, and use reasonable efforts to itself keep available the services of the present officers and employees of the Company and preserve the relationships of the Company with customers, suppliers, distributors, licensors, licensees, and others having business dealings with them), (ii) shall maintain its Subsidiariescurrent accounting methods or practices (other than as required by GAAP) and (iii) shall not take any action inconsistent with the provisions of this Agreement or any of the other Documents to which it is a party. Without limiting the generality of the foregoing, thatunless specifically consented to by Parent or Purchaser in advance in writing, during the Pre-Closing Period, except as or expressly set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreementsother Documents, as reasonably necessary to effect the Reorganization Company shall not:
(subject to and a) incur any Indebtedness other than in accordance with this Agreement and the Related AgreementsOrdinary Course;
(b) assume, guarantee, endorse (other than endorsements for deposit or collection in the Ordinary Course), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division responsible for obligations of any other Person;
(vc) authorize for issuance, issue (other than pursuant to the exercise or conversion of outstanding Company Warrants and Company Options in accordance with their respective terms as in effect on the date of this Agreement), sell, leasedeliver or agree or commit to issue, licensesell or deliver, assigndirectly or indirectly, transferby any means, abandon, convey any Securities of the Company (including any Company Warrants or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000Company Options to employees);
(vid) incur amend, waive or modify any Indebtednessterms of any Company Option or Company Warrant, including by directly or indirectly amending or changing the per share exercise price, the number of Company Shares subject to any Company Option or Company Warrant or the period of exercisability or vesting of any Company Option or Company Warrant;
(e) declare, set aside, make or pay any distribution or dividend or enter into any new or amend existing facilities relating voting agreement with respect to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesits Securities;
(viif) reclassify, combine, split or subdivide any of its Securities;
(g) make any change to its Fundamental Documents;
(h) create or permit the creation of any Lien (other than that is not a Permitted Lien) on , or sell, lease, transfer, license or otherwise dispose of any of the assets Company’s Assets except for the sale or license of any Azur Group Entities other than in Company Products pursuant to Contracts listed on Section 3.12 of the ordinary course of business and consistent with past practicesCompany Disclosure Schedule;
(viiii) except in the ordinary course of business and consistent with past practicescancel, enter into release or adopt assign any new, Indebtedness owed to it or amend any claims or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required rights held by Lawit;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant investment or awardcommitment of a capital nature either by acquisition of Securities, contributions to capital, business, asset or product line acquisitions, or vestotherwise, accelerate form or otherwise amend acquire any existing grant, benefit Subsidiary or award, under any Benefit Plan, (B) increase make any capital expenditures other than in the compensation payable to any Employee, Independent Contractor, consultant (Ordinary Course exceeding $25,000 individually or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity$100,000 in the aggregate;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (Ak) adopt a plan of partial or complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or otherwise permit its corporate existence to be suspended, lapsed or revoked;
(A) terminate any Material Contract (other than in accordance with its terms); (B) amend, modify, violate or waive any material term of any Material Contract; (C) enter into or renew (other than automatic renewal) any agreement or exercise any discretion providing for acceleration Contract which would constitute a Material Contract if existing on the date of payment or performance as a result of a change of control of any Azur Group Entitythis Agreement;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xviim) (A) enter intoincrease the salaries, wages, other compensation or benefits of any officer, director, employee, or permit any Contractor of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, Company other than Contracts specifically relating to actions falling in accordance with the exceptions to terms and conditions of any Contract existing as of the covenants set forth in clauses (v), (xi) or (xxiv) date of this Section 5.4(a), or Agreement; (B) modify in pay any material respect, amend in compensation to or for any material respect officer or terminate any Material Contract;
(xviii) enter into any Contract, employee other than in the ordinary course of business and consistent with past practices and that does not require (x) a term and/or pursuant to employment arrangements in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach effect on the date of this Agreement or to or for any Related Contractor other than in the ordinary course of business and/or pursuant to the arrangements in effect on the date of this Agreement; (C) make any advance or loan to any officer, director, employee, or Contractor of the Company; (D) modify the terms of the relationship of any officer, director, employee, or Contractor with the Company; (E) enter into, modify or terminate any employment Contract or extend any offer of employment; (F) change the status, title or responsibilities, including by termination, demotion or promotion, of any officer, employee, or Contractor; (G) pay or agree to pay any bonus, incentive compensation, equity or equity-related compensation, service award, severance, retention, change in control, “stay bonus” or other like benefit other than pursuant to the terms of any Company Benefit Arrangement or Contract, as in existence on the date of this Agreement or as listed on Section 3.16(a) of the Company Disclosure Schedule; (BH) adopt, amend, fund, accelerate payment under or terminate any Company Benefit Arrangement, other than pursuant to the commencement terms of any litigation for patent infringement Company Benefit Arrangement or Contract, as in response existence on the date of this Agreement or as required by, or to comply with, applicable Law; or (I) enter into any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA collective bargaining agreement, trade union agreement or similar filing, commence agreement or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rightsarrangement;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(An) make any change in any annual method of accounting period or accounting practice other than as required by GAAP, applicable Law or any Governmental Authority and as previously reported to the Purchaser in writing;
(o) make, change or revoke any material election in respect of Taxes; adopt or change a any accounting method in respect of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) Taxes; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement; file any amended Tax Return; settle or compromise any claim, settle any Tax claim notice, audit report or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund in respect of Taxes, ; or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course respect of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing DateTaxes;
(xxiiip) lend money to (A) prepay any person long-term Indebtedness, (except for business expenses to its current employees B) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise) arising other than in the ordinary course Ordinary Course, other than payment, discharge or satisfaction of business liabilities reflected or reserved against in the Company Balance Sheet and consistent with past practicesother than Transaction Expenses, or (C) fail to pay any debts and Taxes in a timely manner, subject to good faith disputes over such debts or guarantee the indebtedness of any PersonTaxes or fail to pay or perform other obligations in a timely manner subject to good faith disputes over whether payment or performance is owing;
(xxivA) accelerate or delay the collection of notes or Accounts Receivable in advance of or beyond their regular due dates or the dates on which the same would have been collected in the Ordinary Course or (B) delay or accelerate the payment of any account payable in advance of its due date or the date such Liability would have been paid in the Ordinary Course;
(r) write up, write down or write off the book value of any of the Assets of the Company, except as required by GAAP for Accounts Receivable that are not collectible, or the depreciation and amortization or impairment of assets in accordance with GAAP consistently applied;
(s) (A) waive, release, assign, settle or compromise any material claims or right to make claims, settle any Proceeding or (B) initiate any litigation or arbitration proceeding;
(t) make any capital expenditureschange in the manner in which the Company extends discounts or credits to customers, except for capital expenditures thatotherwise deals with its customers or distributors or markets its products or services, when added other than in the Ordinary Course;
(u) transfer, assign, abandon, fail to all other capital expenditures made on behalf maintain, permit to lapse or exclusively license to or from any Person any Intellectual Property Rights or enter into any Contract with respect to or otherwise binding upon any Intellectual Property or Intellectual Property Rights of the Azur Group Entities during Company or any of its Subsidiaries (other than the Pre-Closing PeriodCompany), do not exceed $1 millionother than pursuant to the terms of any Contract as in existence on the date of this Agreement;
(v) take any action which could increase the Company’s liability for Taxes (other than, for the avoidance of doubt, conducting business in the Ordinary Course);
(w) fail to keep in full force and effect the Insurance Policies or other comparable insurance affecting the business of the Company, or reduce the amount of any insurance coverage provided by the Insurance Policies, other than pursuant to the terms of any Insurance Policies as in existence on the date of this Agreement; or
(xxvx) directly or indirectly take, agree to take or commit permit to do occur any of the foregoingforegoing actions.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, BiteSquad agrees that, during the Pre-Closing Periodperiod commencing on the date of this Agreement and ending as of the earlier of (x) termination of this Agreement in accordance with Article VIII, and (y) the Closing, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as otherwise contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed consented to in writing by Jazz Parent (such agreement which consent shall not to be unreasonably withheld, conditioned or delayed), each BiteSquad Party shall (xi) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a))practice, (yii) each of the Azur Group Entities will use commercially reasonable efforts to maintain the business, properties, physical facilities and operations of each BiteSquad Party, preserve intact the current business organization of the BiteSquad Parties, keep available the services of the current officers, key employees and agents of each BiteSquad Party and maintain existing the relations and goodwill with Governmental Authorities, employeessuppliers, customers, brokerslessors, suppliers and other Persons with which any of the Azur Group Entities has significant business relations licensors, and (ziii) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not tonot, directly or indirectly doindirectly, or commit to do, effect any of the following:
(a) make any change in or amendment to its Organizational Documents;
(b) (i) declaremake, accrue, set aside declare or pay any dividend or make distribution to BiteSquad Unitholders in their capacities as owners of Membership Interests (which expressly shall not include any other distribution in respect repurchases of any shares of capital stock Membership Interests from employees or other securitiesservice providers pursuant to the express terms of repurchase rights contained in written agreements with such service providers), or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) effect any recapitalization, reclassification, split or other change in its capitalization or (iii) authorize for issuance, issue, deliversell, transfer, pledge, encumber, sell or authorize to sell any shares of capital stock dispose of or other equity deliver any additional membership interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or exchangeable for membership interests or other equity interests, or issue, sell, transfer, pledge, encumber or grant any rightsright, warrants option or options to acquire any such shares other commitment for the issuance of capital stock membership interests or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreementor split, combine or reclassify any membership interests or other equity interests;
(iiic) amend enter into, assume, assign, partially or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or completely amend any terms material term of, modify any material term of or voluntarily terminate (excluding any expiration in accordance with its terms) any Material Contract, any material lease related to the outstanding securities of Leased Real Property or any Azur Group Entitycollective bargaining or similar agreement to which any BiteSquad Party is a party or by which it is bound, other than entry into such agreements in the ordinary course consistent with past practice;
(ivd) effect or become incur any Indebtedness (other than a party to any Contract relating to a Competing Transaction Working Capital Line of Credit and accounts payable and accrued liabilities in the ordinary course of business consistent with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Personpast practice);
(ve) sell, lease, license, assignpermit to lapse, transfer, abandon, convey abandon or otherwise dispose of any assetsof its properties or assets that are material to its business, securities, rights except for sales or property dispositions of items or materials in an amount not in excess of $100,000 in the aggregate;
(f) (i) grant or agree to grant to any employee or other independent contractor of any Azur Group EntityBiteSquad Party, who has annual compensation in excess of $100,000, any increase in wages or bonus, severance, profit sharing, retirement, insurance or other than compensation or benefits that is guaranteed to remain in each case effect after the Closing (and if such increase does not remain in effect after the Closing, such employee or other independent contractor will not have a right to terminate his or her employment or engagement in connection therewith and be eligible to receive severance or any other benefit), or (ii) adopt or establish any new compensation or employee benefit plans or arrangements, or amend, terminate, or agree to amend or terminate any existing BiteSquad Benefit Plans, or (iii) accelerate the time of payment, vesting or funding of any compensation or benefits under any BiteSquad Benefit Plan (including any plan or arrangement that would be a BiteSquad Benefit Plan if it was in effect on the date hereof), or (iv) make or agree to make any bonus or incentive payments to any individual outside of the currently effective bonus plan as has been made available to Parent, or (v) enter into any new employment, consulting or other compensation agreement (A) sales of inventory and equipment in for which the ordinary course of business and consistent with past practices, annual compensation to be paid is greater than $100,000 or (B) that is not individually terminable upon notice and without liability to any BiteSquad Party, except (1) as may be required under applicable Law, (2) as required pursuant to BiteSquad Benefit Plans in excess accordance with their existing terms as in effect on the date hereof, (3) for payment of any accrued or earned but unpaid compensation, or (4) pursuant to employment, retention, change-of-control or similar type Contracts not to exceed $500,000150,000 in the aggregate or (vi) modify in any respect the terms of any existing employment, consulting or other compensation agreement or (vi) make any change to the key management structure of the BiteSquad Parties, including the hiring and firing of additional officers or termination of existing officers (other than for “cause”);
(vig) incur make, change or rescind any IndebtednessTax election, (b) settle or compromise any claim, notice, audit report or assessment in respect of Taxes, (c) change any Tax period, (d) adopt or change any method of Tax accounting, (e) file any amended Tax Return or claim for a Tax refund, (f) surrender any right to claim a refund of Taxes, (g) enter into any new Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, pre-filing agreement, advance pricing agreement, cost sharing agreement, or amend existing facilities relating closing agreement related to Indebtednessany Tax, issue or sell (h) request any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesTax ruling from a competent authority;
(viih) cancel or forgive any Indebtedness owed to any BiteSquad Party;
(i) except as may be required by applicable Law or GAAP, make any material change in the financial or tax accounting methods, principles or practices of any BiteSquad Party (or change an annual accounting period);
(j) unless required by applicable Law, (i) enter into any collective bargaining agreement, works council agreement or any other labor-related Contract with any labor union, labor organization or works council, or (ii) recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any employees of the BiteSquad Parties;
(k) implement any employee layoffs that would, independently or in connection with any layoffs occurring prior to the date hereof, implicate the Worker Adjustment and Retraining Notification Act of 1988, as amended, or similar applicable state and/or local laws;
(l) grant or otherwise create or permit consent to the creation of any Lien (other than a Permitted LienLien or a Lien securing the Working Capital Line of Credit) on any of its material assets or Leased Real Property;
(m) make any material change to any of the assets cash management practices of the BiteSquad Parties, including materially deviating from or materially altering any of its practices, policies or procedures in paying accounts payable or collecting accounts receivable;
(n) make any material change to the marketing strategy of the BiteSquad Parties;
(o) make any change to any tip-pooling arrangement or to any practices of any Azur Group Entities BiteSquad Party with respect to tips and gratuities as in effect as of the date hereof, unless required by applicable Law;
(p) waive, release, compromise, settle or satisfy any pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Action) or compromise or settle any liability, other than (i) in the ordinary course of business, (ii) that otherwise do not exceed $100,000 individually or $200,000 in the aggregate, or (iii) solely through payment of Cash prior to Closing;
(q) make or incur any capital expenditures, except for capital expenditures (i) in the ordinary course of business and consistent with past practicesor (ii) other than capital expenditures in an amount not to exceed $100,000 individually or $200,000 in the aggregate;
(viiir) except in the ordinary course of business and consistent with past practices, enter into (i) fail to maintain its existence or adopt any newacquire by merger or consolidation with, or amend merge or terminate consolidate with, or purchase substantially all of the assets of, any existingcorporation, Benefit Plan (including any trust partnership, association, joint venture or other funding arrangement)business organization or division thereof, other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (Aii) make any new grant acquisition of any assets, business, stock or awardother properties in excess of $100,000 individually or $200,000 in the aggregate, (iii) sell, transfer, license, assign or otherwise dispose of or encumber any of the material assets or Intellectual Property pertaining to the business of any BiteSquad Party with a value in excess of $200,000, or vest, accelerate acquire any assets in excess of $200,000 or otherwise amend any existing grant, benefit (iv) adopt or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or of any BiteSquad Party (Bother than the Merger);
(s) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control that restricts the ability of any Azur Group Entity;
(xvi) renew BiteSquad Party to engage or compete in any line of business, or enter into any Contract with any non-compete or exclusivity provisions agreement that would contractually restrict or limit restricts the operations ability of any Azur Group Entity in any material respectBiteSquad Party to enter a new line of business;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(At) make any change in loans or advances to any annual accounting period or adopt or change a method of accounting for Tax purposesPerson, except as required by applicable Law, (B) make for advances to employees or change officers of any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made BiteSquad Party in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datepractice;
(xxiiiu) lend money fail to maintain, cancel or materially change coverage under any person (except for business expenses Insurance Policy in form and amount equivalent in all material respects to the insurance coverage currently maintained with respect to each BiteSquad Party and its current employees in the ordinary course of business assets and consistent with past practices) or guarantee the indebtedness of any Person;properties; and
(xxivv) make authorize any capital expendituresof, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit or agree to do take any of, the foregoing actions in respect of which it is restricted by the foregoingprovisions of this Section 6.1.
Appears in 1 contract
Conduct of the Business. Azur agrees(a) From the date hereof until the earlier of the Closing Date or the date, as if any, on which this Agreement is terminated pursuant to itself Section 8.1 (the “Termination Date”), the Company and each of its Subsidiaries will (and each of the Shareholders will cause the Company and its Subsidiaries to)
(i) conduct their business only in the ordinary course of business consistent with past practice and (ii) use reasonable best efforts to preserve intact the business organization and goodwill of their business, to maintain the Company’s and its Subsidiaries’ relationships with the customers, thatsuppliers, during distributors and other third parties having business dealings with the Pre-Closing PeriodCompany or any of its Subsidiaries and to keep available the services of the key employees and independent contractors providing services to the Company or any of its Subsidiaries.
(b) In furtherance of, and without limiting the generality of, Section 6.1(a), except as expressly permitted by this Agreement, as set forth in Section 5.4 6.1(b) of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to approved in writing by Jazz Purchaser (such agreement which approval will not to be unreasonably withheld, conditioned or delayed), (x) each from the date hereof until the earlier of the Azur Group Entities shall conduct Closing Date or the Termination Date, neither the Company nor any of its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith Subsidiaries will (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of Shareholders will not permit the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which Company or any of the Azur Group Entities has significant business relations and (zits Subsidiaries to) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, do any of the following:
(i) declare, accrue, take or omit to take any action that results or may reasonably be expected to result in any of the representations and warranties of the Shareholders set aside forth herein being or pay becoming untrue in any dividend material respect or make in any other distribution of the conditions precedent set forth in respect of any shares of capital stock Section 7.1 or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group EntitySection 7.3 not being satisfied;
(ii) issue, deliver, pledge, encumber, sell amend or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreementotherwise change its organizational documents;
(iii) amend or otherwise alter (or propose incur any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group EntityLiabilities, other than in each case (A) sales of inventory and equipment Liabilities incurred in the ordinary course of business and consistent with past practicesbusiness, or (B) not individually in excess of $500,000;
(vi) incur discharge or satisfy any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any newEncumbrances, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any ContractLiabilities, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year practice, or (y) payments by fail to pay or discharge when due any Azur Group Entity in excess of $500,000 per annumaccounts payable or other Liabilities;
(xixiv) sell, encumber, assign or transfer any assets or properties of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practice;
(v) create, incur, assume, modify, amend or guarantee any indebtedness for money borrowed;
(vi) make any material change in the business of the Company or any of its Subsidiaries, except for such changes as may be required to comply with Applicable Law;
(vii) make any loans, advances or capital contributions to, or investments in, any Person;
(viii) except as required by Applicable Law, (A) institute or announce any increase in connection with the compensation, bonuses or other benefits payable to any actual or alleged breach of this Agreement or any Related Agreement or employee; (B) enter into or amend any employment, consulting, severance or change of control agreement with any employee; (C) enter into, adopt or amend any Plan or other commitment or arrangement relating to the commencement employment of any litigation for patent infringement in response employee; or (D) make or commit to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign make any material claims increase in contributions or material rights, including with respect to benefits under any Azur IP RightsPlan that would become effective on or after the Closing Date;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(Aix) make any change in the accounting methods, principles or policies applied in the preparation of the Financial Statements, other than any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, Applicable Law or a change in GAAP;
(Bx) make made or change changed any Tax election, (C) file changed an annual accounting period, adopted or amend changed any accounting method, filed any amended Tax Return or (D) enter Return, entered into any closing agreement, settle settled any Tax claim or assessment relating to any of the Azur Group EntitiesCompany or its Subsidiaries, surrender surrendered any right to claim a refund of Taxes, or consent consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or its Subsidiaries, or taken any Azur Group Entity other similar action relating to the filing of any Tax Return or the payment of any Tax;
(in each case xi) fail to use commercially reasonable efforts to collect any accounts receivable when due;
(xii) make or suffer any amendment or termination of any Material Contract;
(xiii) cancel, modify or waive any debts or claims held by the Company or any of its Subsidiaries, other than elections, filings, settlements, closing agreements, extensions or waivers made with respect to immaterial amounts in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datepractice;
(xxiiixiv) lend money suffer any material damage, destruction or casualty loss to any person (except for business expenses of its properties, not covered by insurance, or suffer any repeated, recurring or prolonged shortage, cessation or interruption of supplies or utilities or other services required to conduct its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Personoperations;
(xxivxv) make any capital expenditures, except commitments or agreements for capital expenditures that, when added to all other or capital expenditures made on behalf additions or betterments exceeding in the aggregate Five Thousand Euro (€5,000) in excess of the Azur Group Entities during Company’s currently existing capital expenditure budget, a true and correct copy of which has been made available to Purchaser;
(xvi) (A) issue or commit to issue any capital stock of the Pre-Closing PeriodCompany or any of its Subsidiaries or securities (including options and warrants) convertible into or exchangeable (or exercisable) for capital stock of the Company or any of its Subsidiaries, do (B) adjust, split, combine, reclassify or redeem any of the Shares or (C) declare, authorize, set aside or pay any dividend;
(xvii) acquire any interest in any other business entity;
(xviii) execute any Contract or incur any Liability therefor (i) involving an annual payment or receipt in excess of Five Thousand Euro (€5,000) or requiring aggregate payments or receipts in excess of Five Thousand Euro (€5,000) or (ii) that cannot exceed $1 millionbe terminated without penalty on less than 90 days’ notice;
(xix) enter into any transactions with any Affiliate, shareholder, director, officer or employee of the Company or any of its Subsidiaries; or
(xxvxx) agree enter into any agreement, commitment or commit understanding (whether written or oral) with respect to do any of the foregoing.
Appears in 1 contract
Conduct of the Business. Azur agreesFor the period commencing on the date hereof and ending on the Closing Date, as to itself the Seller Parent shall, and its Subsidiaries, that, during the Pre-Closing Periodshall cause each Seller to, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as expressly required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to expressly provided for hereby and in accordance with this Agreement and the Related Agreements), or except as otherwise agreed consented to in advance in writing by Jazz the Purchaser Parent:
(such agreement a) conduct the Business only in the Ordinary Course and not engage in any new line of business or enter into any agreement, transaction or activity or make any commitment with respect to be unreasonably withheld, conditioned or delayed), (x) each any member of the Azur Group Entities shall conduct its business and operations solely Company Group, except those in the ordinary course of Ordinary Course and not otherwise prohibited under this Section 7.1;
(b) preserve intact its goodwill and business organization, keep its officers and consistent with past practices and, employees available to the extent consistent therewith (Purchasers, and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations its relationships and goodwill with Governmental Authorities, employees, customers, brokersdistributors, suppliers suppliers, employees and other Persons with which any of the Azur Group Entities has significant having business relations with it, in each case in the Ordinary Course;
(c) maintain its existence and good standing in its jurisdiction of organization and in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification;
(zd) subject duly and timely file or cause to applicable Law as agreed be filed all Tax Returns required to be filed with any Governmental Entity and promptly pay or cause to be paid when due all Taxes, assessments and governmental charges, including interest and penalties levied or assessed, unless diligently contested in good faith by counsel to Jazzappropriate proceedings;
(e) maintain in existing condition and repair, Azur shall in the Ordinary Course consistent with past practices, all buildings, offices, living centers and other structures located on the Company Real Property, and all equipment, fixtures and other tangible personal property located on the Company Real Property;
(f) not authorize for issuance or issue and shall cause each deliver any additional shares of the Azur Group Entities not to, directly its capital stock or indirectly dosecurities convertible into or exchangeable for shares of its capital stock, or commit issue or grant any right, option or other commitment for the issuance of shares of its capital stock, or split, combine or reclassify any shares of its capital stock;
(g) not amend or modify its charter documents;
(h) not declare any dividend, pay or set aside for payment any dividend or other distribution or make any payment to do, any related parties other than the payment of salaries in the following:Ordinary Course;
(i) declarenot create any subsidiary, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interestssecurities of any Person or acquire any equity or ownership interest in any business or Person;
(j) not dispose of or permit to lapse any right to the use of any patent, trademark, trade name, service xxxx, license or copyright of any member of the Company Group (including any of the Company Intellectual Property), or dispose of or disclose to any rightsPerson, warrants any trade secret, formula, process, Software, technology or options to acquire know-how of any such shares member of capital stock or other equity interests, except with respect to exercise the Company Group not a matter of Azur Options outstanding public knowledge prior to the date hereof;
(k) not (i) sell or transfer any asset, (ii) create, incur or assume any indebtedness secured by any asset of any member of the Company Group, (iii) grant, create, incur or suffer to exist any Lien on any asset of any member of the Company Group, (iv) incur any liability or obligation (absolute, accrued or contingent) (including the guaranty of a liability or obligation of any other Person), except in the Ordinary Course, (v) write-off any guaranteed check, note or account receivable, (vi) write-down the value of any asset or investment on the books or records of any member of the Company Group, except for depreciation and amortization in the Ordinary Course, (vii) cancel any debt or waive any claim or right (except as provided in Section 4.24(a)), (viii) except as provided in Schedule 7.1(k)(viii), make any commitment for any capital expenditure to be made on or following the date hereof in excess of $10,000 in the case of any single expenditure or $25,000 in the case of all capital expenditures, in each case other than as expressly requested by HUD, or (ix) enter into any material contract or agreement without the written consent of the Purchaser Parent;
(l) not increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, officers, directors or consultants, except in the Ordinary Course; provided, however, that no member of the Company Group shall take any action described in this Section 7.1(l) with respect to (i) any manager, officer or director of any member of the Company Group or (ii) any Person whose annualized compensation is $100,000 or more or whose annual compensation for the twelve (12)-month period following the date hereof is expected to be $100,000 or more;
(m) not pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Company Benefit Plan to any of its employees or consultants, whether past or present, except in the Ordinary Course; provided, however, that no member of the Company Group shall take any action described in this Section 7.1(m) with respect to (i) any manager, officer or director of any member of the Company Group or (ii) any Person whose annualized compensation is $100,000 or more or whose annual compensation for the twelve (12)-month period following the date hereof is expected to be $100,000 or more;
(n) not adopt, amend or terminate any Company Benefit Plan or increase the benefits provided under any Company Benefit Plan, or promise or commit to undertake any of the foregoing in the future;
(o) not enter into a collective bargaining agreement or any contract, arrangement or understanding that, if in effect on the date hereof, would have been required to have been disclosed pursuant to Section 4.21;
(p) not amend or terminate any existing Employment Agreement or enter into any new Employment Agreement;
(iiiq) amend maintain supplies and inventory at levels that are in the Ordinary Course;
(r) continue to extend customers credit, collect accounts receivable and pay accounts payable and similar obligations in the Ordinary Course;
(s) perform in all material respects all of its obligations under, and not default or otherwise alter suffer to exist any event or condition that with notice or lapse of time or both could constitute a default under, each Company Contract (or propose any amendment or alteration toexcept those being contested in good faith) the Governing Documents of any Azur Group Entity and not enter into, assume or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect contract or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract commitment that is or would constitute be a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Company Contract, other than in the ordinary course Ordinary Course;
(t) not pay, discharge or satisfy any claim, liability or obligation (absolute, contingent or otherwise) other than the payment, discharge or satisfaction in the Ordinary Course of business claims, liabilities and obligations reflected or reserved against in the Balance Sheet or incurred in the Ordinary Course;
(u) not increase any reserves for contingent liabilities (excluding any adjustment to bad debt reserves in the Ordinary Course);
(v) maintain in full force and effect and in the same amounts policies of insurance comparable in amount and scope of coverage to that now maintained by or on behalf of any member of the Company Group pursuant to the Insurance Contracts;
(w) maintain its books and records in accordance with GAAP applied on a basis consistent with the Company Group’s past practices and that does not require practice;
(x) a term continue its cash management practices in excess of one year or the Ordinary Course;
(y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) not make or change any election relating to Taxes, change an annual accounting period, adopt or change any accounting method, file any amended Tax electionReturn, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any member of the Azur Group EntitiesCompany Group, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case member of the Company Group, or take any other than electionssimilar action relating to the filing of any Tax Return or the payment of any Tax, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of any Purchaser, any member of the Azur Company Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur member of the Company Group Entity or the Jazz Group Entities existing on the Closing Date;; and
(xxiiiz) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expendituresnot authorize, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit or agree to do take, any of the foregoingforegoing actions that are prohibited by this Section 7.1. In connection with the continued operation of each member of the Company Group during the period commencing on the date hereof and ending on the Closing Date, the Company shall confer in good faith on a regular and frequent basis with the Purchaser Parent regarding operational matters and the general status of on-going operations of the Company and its Subsidiaries. Each Seller hereby acknowledges that the Purchaser Parent does not and shall not waive any right it may have hereunder as a result of such consultations. Neither the Seller Parent nor any Seller shall take any action that would, or that could reasonably be expected to, result in any representation or warranty of such Person set forth herein to become untrue.
Appears in 1 contract
Samples: Purchase Agreement (University General Health System, Inc.)
Conduct of the Business. Azur agrees, as to itself From and its Subsidiaries, that, during after the Pre-Closing Period, except as set forth in Section 5.4 date of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and until the Related Agreements)earlier to occur of the Closing or the termination of this Agreement pursuant to Article IX, or as otherwise agreed to in writing by Jazz except (such agreement w) with the prior written consent of Purchaser (which consent shall not to be unreasonably withheld, conditioned or delayed), (x) each as set forth in Section 5.02 of the Azur Group Entities Seller Disclosure Schedule, (y) as required by applicable Law or the terms of any Material Contract or (z) as otherwise contemplated or permitted by any of the Transaction Documents:
(a) the Company shall, and Seller shall conduct cause the Company to, use commercially reasonable efforts to cause the Business to be conducted in all material respects in the ordinary course, and shall use commercially reasonable efforts to maintain and preserve intact the current organization and business of the Company, and the goodwill and relationships of the Company with its business employees, customers and operations solely suppliers; and
(b) without limiting the generality of the foregoing, the Company shall not, and Seller shall not permit the Company to, do any of the following:
(i) amend the certificate of formation, operating agreement or any other comparable governing document of the Company;
(ii) declare or pay any dividend or make any other distribution to any holder of any Company Interest, other than, in each case, (A) cash dividends or other distributions of cash and (B) dividends or distributions in settlement of intercompany accounts, in each case, fully paid and completed prior to Closing;
(iii) redeem or otherwise acquire any equity interest in, or voting security of, the Company, or issue, sell or grant (A) any equity interest in, or voting security of, the Company or (B) any warrant, option, right, “phantom” stock right, stock appreciation right, stock-based performance unit, convertible or exchangeable securities or any other commitment or undertaking (1) pursuant to which the Company is or may become obligated to issue, sell or grant (x) any equity interest in, or voting security of, the Company or (y) any security convertible into, or exercisable or exchangeable for, any equity interest in, or voting security of, the Company, (2) pursuant to which the Company is, or may become obligated to, issue, sell or grant any such warrant, option, right, unit, security, commitment or undertaking or (3) that gives any Person the right to receive any benefit or right accruing to the holder of the Company Interests;
(iv) split, combine or reclassify any of the Company Interests, or issue any other security in respect of, in lieu of or in substitution for any of the Company Interests;
(v) adopt or amend any Benefit Plan or any Union Contract covering any Business Employee or grant to any Business Employee any material increase in salary, wage rate, bonus, incentive compensation, severance or termination pay for which Purchaser would be liable following the Closing, except, in each case, (A) in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a))practice, (yB) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain as may be required under existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Personagreements, including any joint ventureBenefit Plan or any Union Contract covering any Business Employee, or acquire the stock by applicable Law, (C) in connection with a promotion based on job performance or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sellworkplace requirements, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practicespractice; (D) in the event of an adoption, amendment or grant that affects a broad cross section of employees of the Seller or any of its Affiliates in addition to the Business Employees; or (E) as would not result in any material Liability to the Company.
(vi) terminate, other than for “cause”, (1) any management employee or other key employee of the Business, in each case, whose annual base salary is more than $150,000, or (2) any Significant Employee; or enter into any new employment relationship or agreement with any management employee or other key employee of the Business (except for any Significant Employee) other than (A) in the ordinary course of business to fill vacancies or (B) not individually in excess of where such new management employee or other key employee shall have an annual base salary equal to or less than $500,000;
(vi) incur any Indebtedness, 150,000; or enter into any new employment agreement, or amend materially modify any existing facilities relating to Indebtednessemployment agreement, issue or sell with any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesSignificant Employee;
(vii) create enter into, terminate or permit materially modify any agreement with any Material Customer or Material Supplier, which relates to (or is otherwise entered into in connection with) the creation purchase or sale of any Lien goods or services in excess of $150,000 on an annual basis (other than a Permitted Lienordinary course purchase orders with Material Customers and Material Suppliers);
(viii) on acquire any business or any corporation, partnership, association or other business organization or division, by merger, consolidation, purchase of assets or otherwise, for aggregate consideration in excess of $1,500,000, or that would reasonably be expected to adversely impact the assets of any Azur Group Entities Parties’ obtaining applicable approvals or waivers under the HSR Act;
(ix) other than in the ordinary course of business and consistent with past practices(including, for the avoidance of doubt, sales of inventory), sell, lease or otherwise dispose of any tangible assets of the Company having a fair market value in excess of $150,000, except for assets that are obsolete or no longer used by the Company;
(viiix) sell, lease or otherwise dispose of the Owned Property, or any portion thereof;
(xi) sell, license, assign or abandon any material Intellectual Property owned by the Company, except for (i) licenses granted in the ordinary course of business business, and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust ii) abandonment or other funding arrangement), other than as required by Law;
(ix) except to similar dispositions in the extent required by the terms ordinary course of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000business;
(xii) enter into or forgive any loan to employeesother than in the ordinary course of business, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute permit any material amount asset of the Company to become subject to any trust Lien that would have been required to be set forth in Section 2.08 (Good and Valid Title to Assets Other than Stock, Real Property, Intellectual Property and Contracts), 2.09 (Real Property) or other arrangement funding any Benefit Plan, except to 2.10 (Intellectual Property) of the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement Seller Disclosure Schedule if existing on the date of this Agreement, or by applicable LawAgreement (other than any Permitted Lien);
(xvxiii) (A) adopt a plan of complete make or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter intoTax election of, or permit any of with respect to, the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any ContractCompany, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annumbusiness;
(xixxiv) other than make any material change to the Company’s methods of financial accounting in effect as of the date of this Agreement, except (A) in connection with any actual as required by GAAP or alleged breach of this Agreement or any Related Agreement applicable Law or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including consistent with changes made generally by Seller with respect to any Azur IP Rights;
(xx) adopt any change, its subsidiaries other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionCompany; or
(xxvxv) agree or commit enter into an agreement to do take any of the foregoingforegoing actions described in this Section 5.02(b).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Covia Holdings Corp)
Conduct of the Business. Azur agrees, as to itself From the date hereof until the earlier of the termination of this Agreement and its Subsidiaries, that, during the Pre-Closing PeriodDate, except (a) as set forth in Section 5.4 of the Azur Disclosure ScheduleSchedule 5.01, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz b) if Parent will have consented (such agreement which consent will not to be unreasonably withheld, conditioned or delayed)) after notice has been provided by the Company or (c) as otherwise contemplated by this Agreement, (x1) each of the Azur Group Entities shall Company (A) will conduct its business and operations solely the businesses of the other Group Companies in the ordinary course Ordinary Course of business Business (including maintaining a normal seasonal level of net working capital) and consistent with past practices andkeep available the services of its and the other Group Companies’ officers and employees and (B) shall, to and shall cause the extent consistent therewith (and subject to the restrictions Group Companies to, keep all insurance policies set forth in Schedule 3.14, or policies that are substantially similar in all material respects with the terms, conditions, retentions, and limits of liability under the insurance policies set forth on Schedule 3.14, in full force and effect and not take any action (other than file bona fide claims) that would make an insurance policy void or voidable or might result in a material increase in the premium payable under an insurance policy or prejudice the ability to effect equivalent insurance in the future; provided that, notwithstanding the foregoing or clause (2) of this Section 5.4(a))5.01, the Company may use available Cash to repay any Indebtedness; and (y2) each of the Azur Group Entities will use commercially reasonable efforts to preserve not, and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which will not permit any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not its Subsidiaries to, directly or indirectly do, or commit to do, any of the following:
(i) declareexcept for issuances of (A) replacement certificates for shares of Company Stock, accrue(B) new certificates for shares of Company Stock in connection with a transfer of Company Stock by the holder thereof or (C) new certificates for shares of Common Stock in connection with the conversion of Series B Preferred Stock, set aside issue, sell or deliver any of its or any of its Subsidiaries’ equity securities or issue or sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its or any of its Subsidiaries’ equity securities;
(ii) effect any recapitalization, reclassification, equity split or like change in its capitalization;
(iii) amend its Organizational Documents or any of its Subsidiaries’ organizational documents;
(iv) make any distribution of Cash (other than the payment of cash dividends by the Company in the Ordinary Course of Business to holders of Series B Preferred Stock (including in connection with the conversion of the same to Common Stock) who were such holders on the date of this Agreement) or property or otherwise declare or pay any dividend on, or make any payment on account of, the purchase, redemption, defeasance, retirement or other acquisition of, any of its capital stock or common shares, as applicable, or make any other distribution in respect of any shares of capital stock thereof, either directly or other securitiesindirectly, whether in Cash or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Personproperty;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sell, assign or transfer any material portion of its tangible assets, except in the Ordinary Course of Business for (1) inventory assets and (2) non-inventory assets having an aggregate value of less than $500,000 and except for sales of inventory and equipment in the ordinary course of business and consistent obsolete assets or assets with past practices, de minimis or no book value; or (B) not individually mortgage, encumber, pledge, or impose any Lien upon any of its assets, except for Permitted Liens or in excess the Ordinary Course of $500,000Business;
(vi) incur sell, assign, transfer or exclusively license any Indebtednessmaterial patents, trademarks, trade names or copyrights, except in the Ordinary Course of Business;
(vii) materially amend or voluntarily terminate any Material Contract or Real Property Leases other than in the Ordinary Course of Business;
(viii) make any capital investment in, or any advance or loan to, any other Person (other than among the Group Companies), except in the Ordinary Course of Business;
(ix) enter into any other transaction with any of its directors, officers or employees outside the Ordinary Course of Business;
(x) except in the Ordinary Course of Business or as required under the terms of any Company Employee Benefit Plan as of the date hereof, (A) materially increase salaries, severance, pension, bonuses or other compensation and benefits payable by a Group Company to any of its employees, officers, directors or other service providers; (B) materially increase the benefits under any Company Employee Benefit Plan; (C) terminate or materially amend any Company Employee Benefit Plan or adopt any Company Employee Benefit Plan; or (D) hire or engage any new employee or consultant, if such new employee or consultant will receive annual base compensation in excess of $150,000;
(xi) except where control over such settlement is held by the insurer under a policy of insurance set forth on Schedule 3.14, settle any Legal Proceeding if (A) the amount payable by any Group Company in connection therewith would exceed $500,000 or (B) would be reasonably likely to have a material and adverse effect on the post-Closing operations of the business of any Group Company;
(xii) cancel any material third-party indebtedness owed to any Group Company;
(xiii) make or change any material election in respect of Taxes or material method of accounting or accounting policies of any Group Company, in each case unless required by Law or GAAP;
(xiv) prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including inconsistent positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date);
(xv) settle or otherwise compromise any material Claim relating to Taxes, enter into any new closing agreement or amend existing facilities similar agreement relating to IndebtednessTaxes, otherwise settle any material dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes, in each case unless required by Law or GAAP;
(xvi) make any acquisition or consummate any merger or similar business combination or enter into any binding agreement for an acquisition, merger or similar business combination with any Person (provided that, for the avoidance of doubt, non-binding letters of interests will not be considered a binding agreement solely due to binding provisions related to exclusivity, expenses, confidentiality, choice of law or other similar matters);
(xvii) incur any Indebtedness or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or guarantee any debt securities;
(vii) create of its Subsidiaries or permit assume, guarantee, endorse or otherwise as an accommodation become responsible for the creation obligations of any Lien Person (other than a Permitted Lien) on any wholly owned Subsidiary of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
Company) for Indebtedness (viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach refinancing of this Agreement or any Related Agreement existing Indebtedness on terms no less favorable to the Company than, and in an aggregate principal amount not in excess of, such existing Indebtedness or (B) borrowings under or permitted by the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities Company’s existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millioncredit facilities); or
(xxvxviii) agree agree, whether orally or commit in writing, to do any of the foregoing, or agree, whether orally or in writing, to any action or omission that would result in any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Hennessy Capital Acquisition Corp II)
Conduct of the Business. Azur The Company covenants and agrees, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except as set forth in Section 5.4 6.18 of the Azur Company Disclosure ScheduleLetter, that from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated in Schedule 1or permitted by this Agreement, as required by this Agreement Law or to the Related Agreementsextent Assignor shall otherwise consent in writing, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (which decision regarding any such agreement consent shall not to be unreasonably withheld, conditioned or delayed), :
(xa) each of the Azur Group Entities Company shall conduct its business and operations solely in all material respects only in the ordinary and usual course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a))therewith, (y) each of the Azur Group Entities will it shall use its commercially reasonable efforts to (i) subject to prudent management of workforce needs and ongoing programs currently in force, preserve its business organization intact and maintain its existing relations and goodwill with Governmental Authorities, employees, customers, brokerssuppliers, suppliers distributors, creditors, lessors, employees and other Persons with which any of the Azur Group Entities has significant business relations associates, (ii) maintain and keep material properties and assets in good repair and condition and (ziii) subject maintain in effect all material governmental Permits pursuant to applicable Law as agreed in good faith by counsel to Jazz, Azur which such party currently operates; and
(b) the Company shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declareissue, accrue, set aside sell or pay any dividend or make any other distribution in respect of redeem any shares of its capital stock or other securitiesstock, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize redeem any securities convertible into, or options with respect to, warrants to sell purchase, or rights to subscribe for, any shares of its capital stock of or (other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior than pursuant to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of Company ESPP, any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Employee Benefit Plan or any Contract with an Independent Contractor awards made under the Company Equity Plans), (iii) effect any recapitalization, reclassification, stock dividend, stock split or consultant like change in its capitalization, (iv) amend its certificate or articles of incorporation or bylaws (or similar relationship) of any Azur Group Entity existing as equivalent organizational documents), except for amendments, which would not prevent or materially impair the consummation of the date of transactions contemplated by this Agreement or adopted or entered into after (v) except as set forth in Section 6.18 of the date of this Agreement without violation of this Section 5.4(a): (A) Company Disclosure Letter, make any new grant or awardacquisition of, or vestinvestment in, accelerate assets or otherwise amend any existing grant, benefit or award, under any Benefit Plan, stock (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director whether by way of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuringtender offer, recapitalization share exchange or other reorganization or (Bactivity) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement transaction or any Related Agreement or (B) the commencement series of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingrelated transactions.
Appears in 1 contract
Samples: Patent Acquisition Agreement (PROTECT PHARMACEUTICAL Corp)
Conduct of the Business. Azur agreesFrom the date of this Agreement until the earlier of the Closing Date or termination of this Agreement in accordance with its terms, as each of Kenmare and Trident shall use their respective reasonable best efforts to itself cause Northshore and its Subsidiaries to operate and carry on their respective businesses in the ordinary course of business and to maintain and preserve its business organization, assets, properties and business relationships and goodwill with those having business dealings with it; provided, however, that (i) subject to the parties’ obligations under Section 4.2, any action, consequence or effect that results from the exercise of any right of a party hereto under the North Bay Shareholders’ Agreement (including, without limitation, under Section 2.02 thereof) or any Organizational Document of North Bay or its Subsidiaries shall not constitute a breach of this Section 4.5 and this Section 4.5 shall not constitute a limitation or restriction on the exercise of any such right, (ii) any action required to be taken by any party or their respective Affiliates pursuant to the Core Purchase Agreement shall not be a breach of this Section 4.5 and (iii) any action taken by any of the parties or their respective Affiliates in furtherance of any run-off plan for RemainCo and its Subsidiaries (excluding StarStone US and its Subsidiaries) and/or any transfer or transition of the renewal rights of the StarStone International business of such companies to Atrium and its Affiliates, thatin each case as may be approved from time to time by North Bay, during the Pre-Enstar Parties and Trident shall not be a breach of this Section 4.5. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier of the Closing PeriodDate or termination of this Agreement in accordance with its terms, except as required by any Transaction Agreement or by Applicable Law or as set forth in Section 5.4 4.5 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or without the Related Agreements, as reasonably necessary to effect the Reorganization prior written consent of each of Enstar and Trident (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement which consent shall not to be unreasonably withheld, conditioned or delayed), (x) each neither Northshore nor any of the Azur Group Entities shall conduct its business and operations Subsidiaries, nor, solely in the ordinary course case of business clauses (a)-(d), (e)(i), (g)(I) and consistent with past practices and(n), North Bay, shall (and Kenmare and Trident shall not permit Northshore or any of its Subsidiaries or, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a))applicable, (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not North Bay to, directly or indirectly do, or commit to do, any of the following:):
(ia) declare(A) split, accrue, set aside combine or pay any dividend or make any other distribution in respect of reclassify any shares of or other interests representing the outstanding capital stock or equity securities of such Person or (B) issue any other securitiesstock or securities in respect of, in lieu of or in substitution for such shares or other interests;
(b) issue, sell, grant, pledge or otherwise encumber any shares or other interests representing the capital stock of or equity interests of such Person, any other voting securities or any securities convertible into or exchangeable for any such shares or interests, or issue, sell, grant or enter into any subscription, warrant, option, conversion or other right, agreement, commitment, arrangement or understanding of any kind, contingent or otherwise, to purchase or otherwise acquire, any such shares or interests, or any securities convertible into or exchangeable for any such shares or interests;
(c) repurchase, redeem or otherwise acquire any securities or equity equivalents of such Person;
(d) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions (whether in cash, shares, property or otherwise) in respect of, any shares of the capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any the shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any of such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(ve) sell, lease, license, assign, transfer, abandon, convey (i) adopt or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization reorganization, of such Person or (ii) purchase, sell, lease, exchange or otherwise dispose of or acquire any property or assets of Northshore or any of its Subsidiaries (other than transactions with respect to investment assets in accordance with the investment guidelines of Northshore or any of its Subsidiaries);
(f) acquire or agree to acquire (whether by merger, consolidation, purchase of assets or by any other means) (A) any business or any division thereof or (B) enter into any agreement capital stock, other equity or exercise any discretion providing for acceleration of payment debt securities or performance as a result of a change of control equity or ownership interest in or of any Azur Group Entityother Person, other than investment assets acquired in accordance with the investment guidelines of Northshore or any of its Subsidiaries;
(xvig) renew except as set forth on Section 4.5(g) of the Disclosure Schedule: (A) grant any incentive awards or make any increase in the salaries, bonuses or other compensation and benefits payable by Northshore or any of its Subsidiaries to any of its employees, officers or directors, except for ordinary course base salary increases consistent with past practices, (B) terminate or amend any Employee Benefit Plan except for routine renewals that do not materially increase costs thereunder, or grant, amend or terminate any awards thereunder, (C) fund any payments or benefits that are payable or to be provided under any Employee Benefit Plan, (D) adopt or enter into any Contract with plan, policy or arrangement for the current or future benefit of any non-compete officer or exclusivity provisions director of Northshore or any of its Subsidiaries that would contractually restrict be an Employee Benefit Plan if it were in existence as of the date hereof, (E) hire or limit the operations engage any senior management employee of any Azur Group Entity in any material respect;
(xvii) (A) enter into, Northshore or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v)its Subsidiaries, (xiF) or (xxiv) terminate without “cause” any senior management employee of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement Northshore or any Related Agreement or of its Subsidiaries, (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(AG) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating loan to any present or former employee or other individual service provider of the Azur Group Entities, surrender Northshore or any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity its Subsidiaries (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made advancement of expenses in the ordinary course of business consistent with past practices), (H) if such electionenter into, adoption, change, amendment, agreement, settlement, surrender, consent amend or other action would have terminate any collective bargaining agreement or similar agreement with a labor union or labor organization or (I) transfer the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute employment of any Azur Group Entity or the Jazz Group Entities existing on the Closing Dateemployee from one Subsidiary of North Bay to another Subsidiary of North Bay;
(xxiiih) lend incur, assume or guarantee any indebtedness for borrowed money to or assume, grant, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of another Person for individual amounts in excess of $25,000 or in the aggregate in excess of $250,000;
(i) pay, settle or compromise any person (Action or threatened Action, except for business expenses to claims under policies and certificates of insurance within applicable policy limits and other than any settlement or compromise that involves solely monetary damages not in excess of $100,000 over any applicable reserve in effect on the date hereof;
(j) release any insurance reserves or re-value any investment assets except as required by GAAP, SAP or Applicable Law;
(k) make any material change in the pricing, accounting, actuarial, investment, reserving, underwriting, risk retention, risk management, hedging or claims administration policies, guidelines, policies, practices or principles of Northshore or any of its current employees Subsidiaries, except as may be required by GAAP or SAP and, in the case of underwriting and claims administration, in the ordinary course of business;
(l) enter into or consent to any agreement with a Governmental Authority that would require Northshore or any of its Subsidiaries to take or refrain from taking any action with respect to its business and consistent after the Closing;
(m) other than in connection with past practices) the management of investment assets, make any loans, advances or guarantee the indebtedness of capital contributions to, or investments in, any other Person;
(xxivn) make enter into any capital expenditures, except for capital expenditures that, when added to all contract or other capital expenditures made arrangement with an Enstar Related Person that would have required disclosure on behalf Section 3.2(i) of the Azur Group Entities during Disclosure Schedule had it been entered into on or prior to the Pre-Closing Period, do not exceed $1 milliondate hereof; or
(xxvo) agree or commit enter into a binding agreement to do take any of the foregoingforegoing actions.
Appears in 1 contract
Conduct of the Business. Azur agrees, as (a) From and after the date hereof and prior to itself the Effective Time and its Subsidiaries, that, during the Pre-Closing Period, except as set forth may be agreed in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required writing by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements)Nutra Pharma, or as otherwise agreed may be expressly permitted pursuant to in writing by Jazz this Agreement, Receptopharm and the Executing Stockholders agree that Receptopharm:
(such agreement not to be unreasonably withheld, conditioned or delayed), (xi) each of the Azur Group Entities shall conduct its business in the ordinary course;
(ii) shall use commercially reasonable efforts to (A) preserve intact its business organization and operations solely goodwill and (B) keep available the services of its current officers and other key employees and preserve its relationships with those Persons having business dealings with Receptopharm;
(iii) shall promptly notify Nutra Pharma of any change in its condition (financial or otherwise) or the breach of any representation or warranty contained herein;
(iv) shall maintain its insurance coverage in such amounts and against such risks and losses as are customary for Receptopharm;
(v) shall not authorize, declare or pay any dividends on or make any distribution with respect to any shares of its capital stock;
(vi) shall not split, combine or reclassify any of its capital stock or other equity interests or issue or authorize or issue any other equity interests in respect of, in lieu of or in substitution for, shares of its capital stock or other equity interests other than the issuance of capital stock pursuant to options, warrants and convertible Receptopharm Securities outstanding as of the date of this Agreement;
(vii) shall not (A) increase the rate of compensation of any employee, except for increases or bonuses occurring in the ordinary course of business, (B) enter into or amend any employment, severance or similar agreements or arrangements with any of its present or former directors or officers, or (C) enter into, adopt or amend any other Receptopharm Employee Benefit Plan;
(viii) shall not terminate any executive officer without cause if the termination would entitle such executive officer to receive enhanced separation payments upon consummation of the Merger;
(ix) shall not authorize or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the Merger) and consistent with past practices shall not purchase a substantial portion of the assets or equity or other securities of any business;
(x) shall not adopt any amendment to its Articles of Incorporation or Bylaws;
(xi) shall not incur or assume or any indebtedness or any other liabilities other than those liabilities incurred in the ordinary course of business;
(xii) shall not (A) make any loans, advances or capital contributions to, or investments in, any other Person, or (B) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than indebtedness, issuances of debt securities, guaranties, loans, advances, capital contributions, investments, payments, discharges or satisfactions incurred or committed to in the ordinary course of business;
(xiii) shall not sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets (including securitizations), other than in the ordinary course of business;
(xiv) shall not enter into any agreement or arrangement that limits or otherwise restricts Receptopharm or that would, be reasonably likely to limit or restrict Receptopharm from engaging or competing in any line of business in any geographic area;
(xv) shall not settle or compromise any material claim, action or proceeding (including any material claim, action or proceeding relating to Taxes) involving money damages, except in the ordinary course of business;
(xvi) shall not make or change any material tax election or change its fiscal year;
(xvii) except as required by an Authority, shall not change its methods of accounting (including making any material write-off or reduction in the carrying value of any assets), other than as agreed by Receptopharm’s independent auditors;
(xviii) shall not take any action that is reasonably likely to delay or materially or adversely affect the ability of any of the Parties hereto to obtain any consent, authorization, order or approval of any governmental commission, board or other regulatory body or the expiration of any applicable waiting period required to consummate the transactions contemplated by this Agreement; and
(xix) shall not agree, in writing or otherwise, to take any of the extent consistent therewith (and subject foregoing actions or take any action which would result in any of the conditions to the restrictions Merger set forth in Article V not being satisfied.
(b) From and after the date hereof and prior to the Effective Time and except as may be expressly permitted pursuant to this Section 5.4(a)Agreement, or as set forth in Schedule 4.1(b), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the followingNutra Pharma:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect shall promptly deliver to Receptopharm true and correct copies of any shares of capital stock report, statement or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except schedule filed with respect to exercise of Azur Options outstanding prior the SEC subsequent to the date of this Agreement;
(ii) shall not split, combine or reclassify any of its capital stock;
(iii) amend shall not authorize, propose or otherwise alter (announce an intention to authorize or propose propose, or enter into an agreement with respect to, any amendment merger, consolidation or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entitybusiness combination;
(iv) effect shall not issue or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entityauthorize the issuance of, or make agree to issue or sell any investment in any equity securities shares of its capital stock of any other Person, including any joint ventureclass, or acquire any other equity interests (in each case, whether through the stock issuance or all granting of options, warrants, commitments, subscriptions, rights to purchase or substantially all otherwise) which would result in a change of the assets or rights voting control of any other Person or any division of any other Person;Nutra Pharma; and
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose shall not take any action that is reasonably likely to delay the ability of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets Parties hereto to obtain any consent, authorization, order or approval of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practicesgovernmental commission, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust board or other funding arrangement), other than as required by Law;
(ix) except to regulatory body or the extent required by the terms expiration of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of applicable waiting period required to consummate the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required transactions contemplated by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Nutra Pharma Corp)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during From the Pre-Closing Period, except as set forth in Section 5.4 date hereof until the earlier of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with termination of this Agreement and the Related AgreementsFirst Effective Time, except (a) as expressly contemplated herein or as set forth on Section 4.01 of the Company Disclosure Schedules, or (b) if Parent shall have consented in writing (which consent shall not be unreasonably withheld, conditioned or delayed), or as otherwise agreed (i) the Company shall use its commercially reasonable efforts to (A) conduct its business in writing by Jazz the usual, regular and ordinary course of business in substantially the manner heretofore conducted, (B) pay its debts and Taxes when due (subject to Parent’s review and consent to the filing of any Tax Return, such agreement consent not to be unreasonably withheld, conditioned or delayed), (xC) pay or perform other obligations when due, (D) preserve intact in all material respects the present business organizations of the Company, (E) keep available the services of the present officers and employees of the Company and (F) preserve the relationships of the Company with customers, suppliers, distributors, licensors, licensees, and others having business dealings with them, each of (A) through (F) herein with the Azur Group Entities goal of preserving unimpaired the goodwill and ongoing business of the Company at the First Effective Time and (ii) the Company shall conduct not:
(a) except for issuances as may result from the conversion of Company Preferred Stock or the exercise of Company Options or for issuances of replacement certificates for shares of Company Stock and except for issuance of new certificates for shares of Company Stock in connection with a transfer of Company Stock by the holder thereof, issue, sell or deliver (or authorize or propose the issuance, sale or delivery of) any of its equity securities or issue or sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its equity securities;
(b) effect any recapitalization, reclassification, equity split or like change in its capitalization;
(c) cause or permit any modifications, amendments or changes to any Organizational Document of the Company or alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business and operations solely entity in which the Company directly or indirectly holds any interest;
(d) declare, set aside, or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of its equity interests, or directly or indirectly make any redemption or purchase of its equity interests (other than with respect to the repurchase of Company Stock from former Employees of the Company pursuant to agreements in effect as of the date hereof);
(e) sell, assign or transfer any of its material tangible assets, except for sales of products in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:practice;
(if) declaresell, accrueassign, set aside transfer or pay license any dividend or make Owned Intellectual Property, nor grant any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities ofsublicenses under, or other ownership interests inrights with respect to, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interestsLicensed Intellectual Property, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment for non-exclusive licenses granted in the ordinary course of business in connection with the performance of services or other activities on behalf and for the benefit of the Company and consistent with past practicespractice;
(g) amend, modify and/or terminate, nor waive, release or assign any material rights or claims under any Material Contract;
(h) enter into or materially amend, modify and/or voluntarily terminate any Contract that would constitute a Material Contract if it had been entered into as of the date hereof;
(i) fail to take commercially reasonable efforts which are customary in the Company’s industry to protect and maintain the Owned Intellectual Property and, to the extent the Company is responsible for the prosecution and maintenance thereof, the Licensed Intellectual Property;
(j) make any capital investment in, or any loan to, any other Person, except pursuant a Contract for which the Company is a party to as of the date hereof and a copy of which has been provided to Parent;
(Bk) not individually make any capital expenditures or commitments therefor in excess of $500,00025,000, except pursuant a Contract for which the Company is a party to as of the date hereof and a copy of which has been provided to Parent;
(vil) make any loan to, or enter into any other material transaction with, any of its officers, Employees or any party described in Section 2.17 except pursuant to a Contract for which the Company is a party to as of the date hereof and a copy of which has been provided to Parent;
(m) except to the extent required by applicable Law, (1) grant or announce any incentive awards or any increase in the salaries, bonuses or other compensation (cash, equity or otherwise) and benefits payable by the Company to any of its Employees, officers, directors or other service providers; (2) enter into or amend any employment, change in control, severance, retention, consulting or similar contract with any officer, Employee, consultant or other agent of the Company; (3) grant any severance or termination pay (cash, equity or otherwise) to any Employee, except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing to Parent, or adopt any new severance plan, or amend or modify or alter in any respect any severance plan, agreement or arrangement existing on the date hereof; or (4) terminate or materially amend any Company Employee Benefit Plan or adopt any arrangement for the current or future benefit or welfare of any officer or employee of the Company that would be a Company Employee Benefit Plan if it were in existence as of the date hereof;
(n) except as set forth in Section 4.01(n) of the Company Disclosure Schedules, hire, offer to hire or terminate (except for cause or non-performance) any Employees, or encourage any Employees to resign from the Company;
(o) commence or settle any material claim or Action;
(p) waive or release any material right or claim of the Company, including any write-off or other compromise of accounts receivable of the Company;
(q) cancel any material third-party Indebtedness owed to the Company;
(r) other than the New Debt, incur any Indebtedness, enter into amend the terms of any new or amend existing facilities relating to Indebtednessoutstanding loan agreement, guarantee any Indebtedness of any Person, issue or sell any debt securities or warrants guarantee the Indebtedness of any Person or other rights to acquire encumber any debt securities or guarantee any debt securitiesassets of the Company;
(viis) create cancel or permit the creation of amend any Lien (other than a Permitted Lien) on any insurance policy of the assets Company;
(t) grant any discounts, credits or rebates to any customer or supplier of any Azur Group Entities the Company other than in the ordinary course of business and consistent with past practices;
(viiiu) except change the Company’s accounting policies or procedures in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan material respect (including any trust or other funding arrangement), other than as required by LawGAAP), including with respect to reserves for doubtful accounts, or payment or collection policies or practices;
(ixv) except revalue any assets of the Company (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(w) enter into any agreement to the extent required by purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify, violate or terminate any of the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group EntityReal Property Leases;
(x) enter into any Contract pursuant acquire or agree to which any Azur Group Entity may become obligated to make any severance, termination acquire by merging or similar paymentconsolidating with, or by purchasing any bonus assets or similar payment (equity securities of, or by any other than payment manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or any equity securities, that are material individually or in respect of base salary)the aggregate, to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director the business of any Azur Group Entitythe Company;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any changethe Company and its Subsidiaries, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax electionmaterial election in respect of Taxes, (C) file adopt or amend change any Tax Return accounting period or (D) method in respect of Taxes, enter into any closing agreementagreement in respect of Taxes with any Governmental Entity, settle any Tax claim or assessment relating to any in respect of the Azur Group EntitiesTaxes, surrender any right to claim a refund of Taxesany Tax refunds, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions respect of Taxes or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing amend any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing DateReturn;
(xxiiiz) lend money to accelerate the payment of receivables, or engage in any person (except for business expenses to its current employees in the ordinary course channel-loading or other similar acceleration of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionsales; or
(xxvaa) take, commit, or agree in writing or commit otherwise to do take, any of the foregoingactions described in Section 4.01.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except Except as set forth in Section 5.4 of on Schedule 6.1, hereof, the Azur Disclosure ScheduleParent will, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) will cause each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices andSubsidiaries to, to the extent consistent therewith (and subject to the restrictions observe each term set forth in this Section 5.4(a))6.1 and agrees that, from the date hereof until the Effective Time, unless otherwise consented to by the Company (ywhich consent shall not be unreasonably withheld or delayed):
(a) each The business of the Azur Group Entities will use commercially reasonable efforts to preserve Parent and maintain existing relations its Subsidiaries shall be conducted only in, and goodwill with Governmental Authorities, employees, customers, brokers, suppliers the Parent and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur its Subsidiaries shall not take any action except in, the ordinary course of their respective businesses and in accordance in all material respects with all applicable laws, rules and regulations and their past custom and practice;
(b) The Parent and its Subsidiaries shall cause each of the Azur Group Entities not tonot, directly or indirectly doindirectly, or commit to do, do any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliversell, pledge, encumber, sell or authorize to sell any shares of capital stock dispose of or other equity interests in encumber any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any its Material assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Lawbusiness;
(ixii) except to the extent required by the terms of any Benefit Plan declare or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant distributions or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including dividends with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionstock; or
(xxviii) agree authorize any of, or commit or agree to do take any of, the foregoing actions.
(c) The Parent will, and will cause each of its Subsidiaries to:
(i) use all commercially reasonable efforts to preserve intact the business organization and goodwill of the foregoingParent and its Subsidiaries, keep available the services of their respective officers and employees as a group and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with the Parent;
(ii) confer on a regular and frequent basis with representatives of the Company to report operational matters and the general status of ongoing operations;
(iii) not intentionally take any action which would render, or which reasonably may be expected to render, any representation or warranty made by them in this Agreement untrue at the Closing;
(iv) cooperate with the Company in finalizing and communicating to the Parent's employees severance, retention and transition arrangements; and
(v) use its reasonable best efforts to cause the Merger to qualify for a reorganization under Section 368(c) of the Code.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself The Seller Parent and its Subsidiaries, the Seller covenant and agree that, during the Pre-Closing Period, except as set forth in Section 5.4 period from the date of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or to the Related AgreementsClosing Date, as reasonably necessary to effect unless the Reorganization Purchaser Parent shall otherwise consent in writing (subject to and in accordance with this Agreement and the Related Agreements), which consent shall not unreasonably be withheld) or as otherwise agreed to in writing contemplated by Jazz this Agreement:
(such agreement not to be unreasonably withheld, conditioned or delayed), a) (xi) the Company and each of the Azur Group Entities Subsidiaries shall conduct its business their respective operations (including, subject to the provisions of Section 5.03, their cash and operations solely in the working capital management practices) only according to their ordinary and usual course of business and consistent with past practices and, to the extent consistent therewith (practice and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will shall use their respective commercially reasonable efforts to preserve intact their respective business operations and maintain existing relations and goodwill relationships with Governmental Authoritiessuppliers, employees, customers, brokers, suppliers customers and other Persons third parties; (ii) none of the Seller Parent, the Seller, the Company or any Subsidiary will take any action in respect of the Business that is not in, the ordinary and usual course of the Business consistent with which past practice; and (iii) neither the Company nor any of the Azur Group Entities has significant business relations and Subsidiaries shall enter into any new line of business;
(zb) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of neither the Azur Group Entities not toCompany nor any Subsidiary shall, directly or indirectly doindirectly, or commit to do, do any of the following:
: (i) declaresell, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliverassign, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) selltransfer, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practicesof, or encumber (Bin whole or in part) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the its assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) or properties, except in the ordinary course of business and the Business consistent with past practicespractice and which incurrence, enter into individually or adopt any newin the aggregate, would not have a Material Adverse Effect with respect to the Company; (ii) amend or restate or propose to amend or restate its certificate of incorporation or certificate of formation or certificate of limited partnership, as applicable, or amend its by-laws, partnership agreement, or terminate any existing, Benefit Plan (including any trust limited liability company operating agreement or other funding arrangement)comparable organizational or governing documents, as applicable; (iii) split, combine, or reclassify any outstanding equity interests; (iv) redeem, purchase, acquire, or offer to acquire, directly or indirectly, any of its equity interests; (v) issue, sell, pledge, deliver or dispose of, or agree or authorize to issue, sell, pledge, deliver or dispose of, any additional securities of, or securities convertible into, exchangeable for or evidencing the right to subscribe for or any options, warrants, or rights of any kind to acquire, any of its equity or voting interests or other than as required property or assets, or make any other change in its capital structure; (vi) acquire (by Law;
merger, consolidation, acquisition of equity interests, assets or otherwise) any Person or division thereof in a single transaction or a series of related transactions; (ixvii) incur, assume or modify any Indebtedness, except for Indebtedness incurred in the ordinary course of the Business consistent with past practice and which incurrence, individually and in the aggregate, would not have a Material Adverse Effect with respect to the extent Company, provided that not withstanding the foregoing, any such Indebtedness incurred shall be repaid in full prior to the Closing and all liens and guarantees related to such Indebtedness shall be terminated or released prior to the Closing and the Seller shall provide evidence of the foregoing reasonably satisfactory to the Purchaser, or prepay any Indebtedness, except for prepayments required by the terms of any Benefit Plan Company Contract or as otherwise specifically contemplated by this Agreement; (viii) cancel or waive any Contract with an Independent Contractor claims or consultant rights of material value; (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (Aix) make any new grant change in any accounting procedure or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
method other than those required by GAAP; (x) enter into amend, cancel or knowingly fail to renew any Company Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect outside of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director the ordinary course of any Azur Group Entity;
the Business consistent with past practice; (xi) terminate renew, extend or modify in any employee other than for cause (in which case Azur shall first consult respect or cancel any lease of real property outside of the ordinary course of the Business consistent with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
past practice; (xii) enter into declare, pay or forgive set aside any loan dividend or make any distribution other than dividends or distributions by any of the Subsidiaries to employees, directors, the Company; or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entityreorganization;
(xvic) renew none of the Seller Parent, the Seller, the Company or enter into any Contract Subsidiary shall (i) grant any increase in the salary, fringe benefit or other compensation (including wages, salaries, bonuses or other remuneration) payable or to become payable to any Business Employee or current or former director, officer or consultant of the Company or any of the Subsidiaries, except in the ordinary course of the Business consistent with any non-compete past practice or exclusivity provisions that would contractually restrict or limit as may be required by the operations terms of any Azur Group Entity Employee Benefit Plan or Contract in existence as of the date of this Agreement, (ii) make any material respect;
bonus, pension, retirement or insurance payment except for payments that have been accrued on the Balance Sheet or are required by the terms of any Employee Benefit Plans, (xviiiii) (A) establish, adopt, enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contractamend, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material ContractEmployee Benefit Plan, or any plan, agreement, program, policy, trust, fund or other arrangement that would be an Employee Benefit Plan if it were in existence as of the date of this Agreement, except as may be required by applicable Law or any Employee Benefit Plan in existence as of the date of this Agreement, (iv) make any loan or advance any money or other property to any Business Employee or current or former director, officer or consultant of the Company or the Subsidiaries, (v) change in any material respect any personnel policies with respect to any Business Employees, or (vi) grant any equity or equity-based awards (including commencing any new offering periods under any employee stock purchase plans);
(xviiid) enter into none of the Seller Parent, the Seller, the Company or any ContractSubsidiary shall take any action to institute any new severance or termination pay practices, or grant any severance or termination pay, with respect to any Business Employees or current or former director, officer or consultant of the Company or the Subsidiaries, or to increase in any respect the benefits payable under its severance or termination pay plans, programs or practices to the extent that the same would be obligations of the Company at or after the Closing;
(e) none of the Seller Parent, the Seller, the Company or any Subsidiary shall adopt or amend in any material respect, except as provided for in this Agreement or as may be required by applicable law or regulation, any bonus, profit sharing, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment or other than employee benefit plan, agreement, trust, fund, plan or arrangement for the benefit or welfare of any Business Employees to the extent that the same would be obligations of the Company after the Closing;
(f) the Company and each Subsidiary shall maintain its books, accounts and records in the ordinary course of business and the Business consistent with past practices practice and that does not require (x) a term shall comply in excess all material respects with all Laws and Governmental Authorizations applicable to it and to the conduct of one year or (y) payments the Business as presently conducted by any Azur Group Entity in excess of $500,000 per annumit;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (Bg) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filingSeller shall not, commence or settle or compromise any litigationand the Seller Parent shall not cause the Seller to, sell, transfer, pledge, dispose of, or waiveotherwise encumber, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rightsof the Shares;
(xxh) adopt the Company shall not sell, transfer, pledge, dispose of or otherwise encumber, any change, other than as required by IFRS, in its accounting policies, procedures or practicesof the Subsidiary Interests;
(xxii) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Lawwould not adversely affect the Purchaser or any of its Affiliates, (B) including the Company and its Subsidiaries, neither the Company nor the Subsidiaries shall make or change any Tax election, (C) change an annual accounting period, adopt or change any accounting method with respect to Taxes, file or amend any amended Tax Return or (D) Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment relating to the Company or any of the Azur Group EntitiesSubsidiaries, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any Azur Group Entity (in each case of the Subsidiaries, take any other similar action relating to the filing of any Tax Return or the payment of any Tax, shall settle and/or compromise any Tax liability, prepare any Tax Returns inconsistent with past practice, incur any liability for Taxes other than electionsin the ordinary course, filingsfile an amended Tax Return or a claim for refund of Taxes, settlementsmake any payment pursuant to any tax sharing, closing agreementsallocation or similar agreement or enter into any tax sharing, extensions allocation or waivers made similar agreement that would create or give rise to any obligation or liability of any of the Company and the Subsidiaries that is not satisfied or otherwise discharged in full prior to the Closing;
(j) neither the Company nor any of the Subsidiaries shall make any capital expenditures or commitments other than as set forth in the most recent budget disclosed to the Purchaser Parent prior to the date hereof and attached hereto as Schedule 5.01(j);
(k) neither the Company nor any of the Subsidiaries shall write-off as uncollectible any notes or accounts receivable, except in the ordinary course of business the Business consistent with past practicespractice and which (1) if such electionwould not, adoptionindividually or in the aggregate, change, amendment, agreement, settlement, surrender, consent reasonably be expected to have a Material Adverse Effect with respect to the Company or other action would have the effect of increasing the Tax liability (2) is required by GAAP;
(l) none of the Azur Group Entities Seller Parent, the Seller, or the Jazz Group Entities for Company or any period ending after of the Closing Date or decreasing Subsidiaries shall knowingly take any Tax attribute of any Azur Group Entity action that would cause the Seller Parent’s or the Jazz Group Entities existing on Seller’s representations and warranties to be inaccurate or untrue in any material respect as of the Closing Date;
(xxiiim) lend money neither the Company nor any of the Subsidiaries shall make any loans, advances or capital contributions to, or investments in, any other Person other than loans, advances or capital contributions or investments by the Company or any of the Subsidiaries to or in any person (except wholly-owned Subsidiary, or tuition advances, draws against sales commissions, and advances for relocation expenses and business expenses to its current employees in the ordinary course of business and the Business consistent with past practices) or guarantee the indebtedness of any Person;
(xxivn) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of neither the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do Company nor any of the foregoingSubsidiaries shall enter into or consummate any transactions with Affiliates, except in the ordinary course of the Business consistent with past practices;
(o) neither the Company nor any of the Subsidiaries shall enter into any hedging or derivative Contract; and
(p) none of the Seller Parent, the Seller, the Company or any Subsidiary shall enter into any contract, agreement, or commitment with respect to any of the matters set forth in this Section 5.01(b)-(e) and (g)-(o).
Appears in 1 contract
Conduct of the Business. Azur agrees, (a) Except as to itself and its Subsidiaries, thatexpressly contemplated by this Agreement, during the Pre-Closing Periodperiod from the date hereof to the Effective Time, except as set forth in Section 5.4 of the Azur Disclosure ScheduleSunrise shall, as contemplated in Schedule 1and shall cause its subsidiaries to, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to act and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely carry on their respective businesses in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a))therewith, (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and maintain existing relations employees and preserve the goodwill of those engaged in material business relationships with Governmental Authoritiesthem.
(b) Without limiting the generality of Section 6.1(a), employeesduring the period from the date hereof to the Effective Time and except as contemplated by this Agreement or as set forth in the Sunrise Disclosure Letter, customersSunrise shall not, brokers, suppliers and other Persons with which shall not permit any of its subsidiaries to, without the Azur Group Entities has significant business relations and prior consent of LIN (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur which shall not and shall cause each of the Azur Group Entities not tobe unreasonably conditioned, directly or indirectly dodelayed, or commit to do, any of the following:withheld):
(i) (A) declare, accrueset aside, set aside or pay any dividend dividends on, or make any other distribution distributions (whether in cash, stock, or property) in respect of, any of its or its subsidiaries' outstanding capital stock (except dividends and distributions by a direct or indirect wholly-owned subsidiary of Sunrise to its parent and other than dividends or distributions in respect of the Series A 14% Redeemable Preferred Stock or the Series B 14% Redeemable Preferred Stock, par value $0.01 per share, of STC), (B) split, combine, or reclassify any shares of its outstanding capital stock or issue or authorize the issuance of any other securitiessecurities in respect of, in lieu of, or repurchasein substitution for shares of its outstanding capital stock, redeem (C) except in connection with the termination of the employment of any employees, purchase, redeem, or otherwise acquire any shares of outstanding capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants warrants, or options to acquire any such shares, or (D) issue, sell, grant, pledge, or otherwise encumber any shares of its capital stock stock, any other equity securities or any securities convertible into, or any rights, warrants, or options to acquire, any such shares, equity securities, or convertible securities (other than (1) upon the exercise of Sunrise Stock Options outstanding on the date hereof, (2) pursuant to employment agreements or other equity interests, except with respect to exercise of Azur Options outstanding prior to contractual arrangements in effect on the date hereof, and (3) issuances of this Agreementstock of any direct or indirect wholly-owned subsidiary of Sunrise to its parent);
(ii) amend its Certificate of Incorporation, Bylaws, or other comparable charter or organizational documents;
(iii) amend acquire any business (including the assets thereof) or otherwise alter (any corporation, partnership, joint venture, association, or propose any amendment other business organization or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entitydivision thereof;
(iv) effect sell, mortgage, or become a party otherwise encumber or subject to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey Lien or otherwise dispose of any assetsof its assets or properties that are material to Sunrise and its subsidiaries, securities, rights or property of any Azur Group Entitytaken as whole other than to LIN and its subsidiaries, other than in each case as contemplated by Section 7.1(e);
(A) sales of inventory and equipment other than working capital borrowings in the ordinary course of business and consistent with past practices, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, other than indebtedness owing to or guarantees of indebtedness owing to Sunrise or any of its direct or indirect wholly-owned subsidiaries, or (B) not individually in excess of $500,000;
(vi) incur make any Indebtednessmaterial loans or advances to any other person, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on to Sunrise or any of the assets of any Azur Group Entities its direct or indirect wholly-owned subsidiaries and other than in the ordinary course of business and routine advances to employees consistent with past practices;
(viiivi) except in the ordinary course of business and consistent with past practices, enter into consummate or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise plan that contemplates the merger, interest exchange, conversion, combination or sale of the capital stock, of Sunrise or any discretion providing for acceleration of its subsidiaries with or into any other person, other than as contemplated hereby;
(vii) in respect of the Asset Purchase Agreement dated as of February 8, 2002, among STC, STC License Company, Xxxxx Television of North Dakota, Inc., and Xxxxx Television of North Dakota License Holdings, Inc. decrease the amount of cash consideration provided therein or extend the timing of payment thereof; or
(viii) authorize any of, or performance commit or agree to take any of, the foregoing actions.
(c) Notwithstanding any other provision of this Section 6.1 to the contrary, in no event shall Sunrise be deemed to have breached this Section 6.1 as a result of a change of control of any Azur Group Entity;
(xvi) renew act or enter into any Contract with any non-compete failure to act taken or exclusivity provisions that would contractually restrict or limit not taken by the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made LIN Television Corporation on behalf of Sunrise or its subsidiaries, pursuant to the Azur Group Entities during the Pre-Closing PeriodManagement Services Agreement dated as of January 7, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoing2002, among, Sunrise, STC, STC License Company, and LIN Television Corporation.
Appears in 1 contract
Conduct of the Business. Azur agreesThe Companies shall, as to itself and its Subsidiariesshall cause each Subsidiary to, observe each term set forth in this Section 5.1 and agree that, during the Pre-Closing Period, except as set forth in Section 5.4 5.1 of the Azur Disclosure Schedule, as Schedule or contemplated in Schedule 1, as required by this Agreement Agreement, from the date hereof until the Closing Date, unless otherwise consented to by Buyer in writing:
(a) The business of the Companies and each Subsidiary shall be conducted only in, and none of the Companies or the Related AgreementsSubsidiaries shall take any action except in, as reasonably necessary to effect the Reorganization (subject to ordinary course of the Companies' and each Subsidiary's business and in accordance in all material respects with this Agreement and all applicable Laws;
(b) Other than any cash distributions or cash dividends to Parent or one of its Affiliates, none of the Related Agreements)Companies or the Subsidiaries shall, directly or indirectly, do or permit to occur any of the following: (i) issue or sell any additional shares of, or as otherwise agreed any options, warrants, conversion privileges or rights of any kind to in writing by Jazz acquire any shares of its capital stock; (such agreement not to be unreasonably withheldii) sell, conditioned pledge, dispose of or delayed)encumber any of its assets, (x) each of the Azur Group Entities shall conduct its business and operations solely except in the ordinary course of business and consistent with past practices andbusiness; (iii) amend or propose to amend its Charter Documents or Governing Documents; (iv) split, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each combine or reclassify any outstanding shares of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly doits capital stock, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution payable in respect of any shares of capital stock or other securities, or repurchase, redeem property (other than cash) or otherwise with respect to its capital stock; (v) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
entity; (vi) incur acquire (by merger, exchange, consolidation, acquisition of stock or assets or otherwise) any Indebtednesscorporation, enter into any new or amend existing facilities relating to Indebtednesspartnership, issue or sell any debt securities or warrants joint venture or other rights to acquire any debt securities business organization or guarantee any debt securities;
division or material assets thereof; (vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
business, incur any indebtedness for borrowed money or issue any debt securities, other than short-term borrowings under existing credit facilities that will be repaid in full on or prior to the Closing; (viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require business, permit any accounts payable owed to trade creditors to remain outstanding more than 60 days; (ix) accelerate, beyond the normal collection cycle, collection of accounts receivable; (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) business, amend or modify any Contract listed on Section 3.13 of the Disclosure Schedule, or enter into any contract or agreement that otherwise would be listed on Section 3.13 of the Disclosure Schedule if such electioncontract or agreement had been in effect on the date of this Agreement (and notwithstanding anything to the contrary, adoption, change, amendment, shall not enter into any exclusive distribution or sales agency agreement, settlement, surrender, consent whether or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees not in the ordinary course of business and consistent business); or (xi) other than in the ordinary course of business, enter into or propose to enter into, or modify or propose to modify, any agreement, arrangement or understanding with past practices) or guarantee respect to any of the indebtedness of any Personmatters set forth in this Section 5.1(b);
(xxivc) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf None of the Azur Group Entities during Companies or the Pre-Closing PeriodSubsidiaries shall, do directly or indirectly, (i) enter into or modify any employment, severance or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officers, directors or consultants, or (ii) other than in the ordinary course of business, in the case of employees who are not exceed $1 million; orofficers, take any action with respect to the grant of any bonuses, salary increases, severance or termination pay or with respect to any increase of benefits payable in effect on the date hereof;
(xxvd) agree None of the Companies or commit to do the Subsidiaries shall adopt or amend any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, trust, fund or group arrangement for the benefit or welfare of any employees or any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangements for the benefit or welfare of any director;
(e) Other than in the ordinary course of business, none of the Companies or the Subsidiaries shall cancel or terminate its current insurance policies or cause any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and effect. Without limiting the foregoing, the Company or one or more of the Subsidiaries will use commercially reasonable efforts to cause to be renewed, before its April 1, 2004 expiration date, the Environmental Liability Policy for locations in Germany (Policy No. JL05820305, issued by XL Insurance Company);
(f) The Companies and each Subsidiary shall use its commercially reasonable efforts to (i) preserve intact the Companies' and each Subsidiary's business organization and goodwill, keep available the services of the Companies' and each Subsidiary's officers and employees as a group and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with the Companies and each Subsidiary; and (ii) not intentionally take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue at the Closing;
(g) None of the Companies or the Subsidiaries shall (i) make or rescind any express or deemed election or take any other discretionary position relating to Taxes, (ii) amend any Return, (iii) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or (iv) change any of their methods of reporting income or deductions for federal, state, local or foreign income Tax purposes from those employed in the preparation of the federal, state, local or foreign income Tax Returns for the taxable year ended December 31, 2002;
(h) The Companies and the Subsidiaries shall not change any of their methods of accounting in effect at December 31, 2003, other than those required by U.S. GAAP; and
(i) The Companies and the Subsidiaries shall not perform any act referenced by (or omit to perform any act which omission is referenced by) the terms of Section 3.8 hereof.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during From the Pre-Closing Period, except as set forth in Section 5.4 date of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement until the Closing (or until the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and earlier termination of this Agreement in accordance with Section 11.1), except (a) as expressly required by applicable Law, (b) as contemplated by or otherwise undertaken to implement this Agreement (including Article 6 and the Related Agreements)Article 8) or any Ancillary Agreement, (c) as waived or as otherwise agreed consented to in writing in advance by Jazz Mylan (such agreement which consent shall not to be unreasonably withheld, conditioned delayed or delayedconditioned), or (xd) exclusively with respect to the Excluded Assets or the Excluded Liabilities, Xxxxxx shall, and shall cause each of its Affiliates to (1) carry on the Azur Group Entities shall conduct Business in the ordinary course consistent with past practice and in material compliance with applicable Law, (2) use reasonable best efforts to preserve intact the Transferred Business Assets (including the goodwill of the Business) and the relationships of Xxxxxx and its business Affiliates with their customers, vendors, suppliers, creditors, agents, landlords, equipment lessors, service providers and operations solely employees, in each case, to the extent relating to the Business, (3) pay all accounts payable and other current obligations of Xxxxxx and its Affiliates, in each case, to the extent related to the Business, when they become due and payable in the ordinary course of business and consistent with past practices andpractice, except for accounts payable or other obligations that are the subject of a good faith dispute, (4) continue to maintain the Books, Records and Files of Xxxxxx and its Affiliates to the extent consistent therewith (and subject related to the restrictions set forth in this Section 5.4(a))Business on a basis consistent with past practice, (y5) each continue to make all material filings and payments with Regulatory Authorities required in connection with the Business in a timely manner, and use reasonable best efforts to maintain in effect all existing Registrations required for the ongoing operation of the Azur Group Entities will use commercially reasonable efforts Business as currently conducted, and, in addition to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any without limiting the generality of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazzforegoing, Azur Xxxxxx shall not not, and shall cause each of the Azur Group Entities its Affiliates not to, directly or indirectly do, or commit to do, any of the following:
(i) declare(A) grant any increase, accrueor announce any increase, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock the wages, salaries, compensation, bonuses, incentives, pension, fringe, perquisite, change in control, retention, severance, termination or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration benefits payable to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in new equity awards to, any equity securities Business Employee or Former Business Employee, (B) establish or increase or promise to establish or increase any benefits under any Employee Plan with respect to any Business Employee or Former Business Employee or (C) enter into, establish, adopt, amend or terminate, or take any action to accelerate the vesting or payment of any other Personcompensation or benefits under, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person Stand-Alone Employee Plan (or any division award or accrual thereunder), except in the case of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose each of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A), (B) sales and (C), (1) as may be required (x) under any Employee Plan or other Contract as in effect on the date hereof or (y) under applicable Law, (2) as would also relate to similarly situated employees of inventory and equipment Xxxxxx or the Continuing Affiliates or (3) as effected in the ordinary course of business and consistent with past practices, practice;
(ii) (A) hire any employee with annual base compensation equal to or greater than €300,000 for employment with the Acquired Companies or Acquired Company Subsidiaries or (B) not individually in excess of $500,000transfer any Business Employee to any Other Xxxxxx Business, other than individuals listed on Schedule 8.1(a)(i)-1;
(viiii) incur enter into, terminate or materially amend any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants Described Contract or other rights to acquire any debt securities or guarantee any debt securitiesContract that, if in effect on the date hereof, would have been a Described Contract;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xviv) (A) adopt sell, assign, convey, transfer or lease (as lessor), license, abandon (including by failing to pay any maintenance or annuity fees), let lapse, dispose of or otherwise make subject to a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or material Encumbrance (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions any Permitted Encumbrance) any Transferred Business Asset (including any Transferred Intellectual Property, Business IP License Agreements or Mixed-Use IP License Agreements or material equipment, in each case, to the covenants set forth extent used in clauses (vthe Business), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or practice, (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement write off, forgive, waive or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign otherwise cancel any material claims accounts receivable of Xxxxxx or material rights, including with respect any of its Affiliates to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, the extent included in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposesthe Transferred Business Assets, except as required by GAAP or in the ordinary course of business consistent with past practice, (C) merge or consolidate with any third party, acquire any material asset or material property of any third party or make any investment in any third party (including through any joint venture), in each case with respect to the Business, or (D) enter into any Contract or arrangement to do any of the foregoing;
(v) amend or modify any of the Constituent Documents of any Acquired Company or Acquired Company Subsidiary;
(vi) issue, sell, grant, pledge or otherwise encumber any Securities or Equity Rights of any Acquired Company or Acquired Company Subsidiary;
(vii) (A) change any material Tax or accounting methods, policies or practices of Xxxxxx or any of its Affiliates (to the extent related to the Business), except as required by GAAP or applicable Law, (B) make or change any material Tax electionelections of the Acquired Companies or the Acquired Company Subsidiaries, or (C) file settle any material Action with respect to Taxes of an Acquired Company or amend any Tax Return Acquired Company Subsidiary (except with respect to Excluded Taxes); provided that Xxxxxx and its Affiliates shall be entitled to take actions described in (A), (B) or (DC) enter into to effectuate the Reorganization after providing reasonable notice to Mylan, except that such notice shall not be required for any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made action described in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing DateReorganization Plan;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxivviii) make any capital expendituresexpenditures or commitments therefor with respect to the Business which are in excess of $2,000,000 individually or $20,000,000 in the aggregate in any six (6) month period;
(A) ship Products to customers other than Affiliates of Xxxxxx ahead of shipping dates requested by customers or otherwise accelerate sales of Products, except for capital expenditures that, when added (B) sell Products to all customers other capital expenditures than Affiliates of Xxxxxx in quantities that are not materially consistent with past shipment and sales practices or (C) engage in any practice that would reasonably be expected to be considered “channel stuffing” or “trade loading” of Products;
(x) accelerate to periods prior to the Closing collections of receivables that would otherwise be expected (based on past practice) to be made on behalf of in periods after the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionClosing; or
(xxvxi) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Business Transfer Agreement and Plan of Merger (Abbott Laboratories)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during From the Pre-date hereof until the Closing PeriodDate, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as otherwise contemplated in Schedule 1, as required by this Agreement or as disclosed in Section 5.1 of the Related AgreementsDisclosure Schedule, as reasonably necessary the Sellers and TPGC shall cause TPGC and each of the Subsidiaries to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of conduct the Azur Group Entities shall conduct its business and operations solely Business in the ordinary course of business and in a manner generally consistent with past practices andpractice and (y) make capital expenditures sufficient to support normal maintenance of the Business; provided, however, that nothing in this Section 5.1 shall either require TPGC or any Subsidiary to incur capital expenditures beyond the normal maintenance of the Business or limit or affect the payment by TPGC or any of the Subsidiaries of bonuses, fees or other payments to their respective stockholders, employees, officers or consultants; PROVIDED, HOWEVER, that such bonuses, fees or other payments not payable in the ordinary course in a manner generally consistent with past practice shall be considered Adjustment Liabilities to the extent consistent therewith (not already considered therein, and subject TPGC shall consult with Buyer prior to the restrictions set forth granting or payment of such bonuses, fees or other payments, except that this proviso shall not apply to any bonuses, fees or other payments disclosed in Section 5.1 of the Disclosure Schedule which shall be paid by TPGC in accordance with their terms and conditions. Without limiting the generality of the foregoing, except as otherwise contemplated by this Section 5.4(a)Agreement, from the date hereof until the Closing Date, without the prior written consent of Buyer (which consent shall not be unreasonably withheld), (y) each of the Azur Group Entities Sellers and TPGC will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which not permit TPGC or any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not Subsidiaries to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(iia) issue, deliver, pledgesell, dispose of, pledge or otherwise encumber, sell or authorize to sell or propose the issuance, sale, disposition or pledge or other encumbrance of (x) any additional shares of their capital stock of or other equity interests in any Azur Group Entityclass, or any securities or rights convertible into into, exchangeable for, or evidencing the right to subscribe for any such shares of their capital stock or other equity interests, or any rights, warrants warrants, options, calls, commitments or options any other agreements of any character to purchase or acquire any such shares of their capital stock or other equity interestsany securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of their capital stock except with respect to upon exercise of Azur Options the options disclosed in Section 3.4 of the Disclosure Schedule, or (y) any other securities in respect of, in lieu of, or in substitution for, shares outstanding prior to on the date of this Agreementhereof;
(iiib) amend redeem, purchase or otherwise alter (acquire, or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entityredeem, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey purchase or otherwise dispose acquire, any of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt their outstanding securities;
(viic) create split, combine, subdivide or permit the creation reclassify any shares of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practicestheir capital stock;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (Ad) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of TPGC or any of the Subsidiaries;
(Be) make any acquisition by means of merger, consolidation or otherwise;
(f) adopt any amendments to their respective Certificates of Incorporation or By-Laws;
(g) engage in the conduct of any business other than telecommunications and related businesses including, without limitation, the long distance telephone and cable television businesses;
(h) enter into any agreement or exercise any discretion providing for acceleration of payment or performance or other consequence as a result of a change of control of TPGC or any Azur Group Entityof the Subsidiaries;
(xvii) renew submit or file with, except as otherwise contemplated in this Agreement, or otherwise voluntarily participate as a party to any stipulation, pleading, filing or other proceeding with the FCC, FPSC, GPSC, APSC or any other regulatory authority with jurisdiction over TPGC or the Subsidiaries where such stipulation, pleading, filing or other proceeding could reasonably be expected to have a Material Adverse Effect, or fail to notify Buyer promptly of any involuntary participation in any of the foregoing, or authorize or announce an intention to do any of the foregoing, or enter into any Contract with contract, agreement, commitment or arrangement to do any non-compete or exclusivity provisions that would contractually restrict or limit of the operations of any Azur Group Entity in any material respectforegoing;
(xviij) (A) enter into, or permit incur any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contractliabilities, other than Contracts specifically relating to actions falling liabilities incurred in the ordinary course of business consistent with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a)past practice, or (B) modify in discharge or satisfy any material respectLien, amend in or pay any material respect or terminate any Material Contract;
(xviii) enter into any Contractliabilities, other than in the ordinary course of business and consistent with past practices practice and that does not require (x) a term in excess as contemplated hereby, or fail to pay or discharge when due any liabilities of one year which the failure to pay or (y) payments by discharge has caused or will cause any Azur Group Entity in excess material damage or risk of $500,000 per annummaterial loss to it or its Assets or properties;
(xixk) other than (A) in connection with any actual sell, assign or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to transfer any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made its material Assets except in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datepractice;
(xxiiil) lend money except pursuant to existing credit facilities, create, incur, assume or guarantee any Indebtedness for Borrowed Money, or mortgage, pledge or subject to any person Lien (except for business expenses other than Permitted Liens and as disclosed on Section 3.14 of the Disclosure Schedule), any of its Assets;
(m) make or suffer any amendment or termination (other than by its terms) of any material agreement, contract, commitment, lease or plan to its current employees which it is a party or by which it is bound, or cancel, modify or waive any material debts or claims held by it, other than in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Personpractice;
(xxivn) make change any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during material accounting principles followed by it or the Pre-Closing Periodmethods of applying such principles;
(o) except as disclosed in Section 5.1 of the Disclosure Schedule, do not exceed $1 millionmake or promise any material increase in the salary or other compensation payable or to become payable to any executive officer or other employee of TPGC or any of the Subsidiaries other than in the ordinary course of business or as contemplated under any Benefit Plan or employment arrangement currently in effect; or
(xxvp) agree or commit enter into an agreement to do any of the foregoingthings described in the preceding clauses (a) through (o).
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during From the Pre-Closing Period, except as set forth in Section 5.4 date of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement until the Closing (or until the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and earlier termination of this Agreement in accordance with Section 11.1), except (a) as expressly required by applicable Law, (b) as contemplated by or otherwise undertaken to implement this Agreement (including Article 6 and the Related Agreements)Article 8) or any Ancillary Agreement, (c) as waived or as otherwise agreed consented to in writing in advance by Jazz Mylan (such agreement which consent shall not to be unreasonably withheld, conditioned delayed or delayedconditioned), or (xd) exclusively with respect to the Excluded Assets or the Excluded Liabilities, Abbott shall, and shall cause each of its Affiliates to (1) carry on the Azur Group Entities shall conduct Business in the ordinary course consistent with past practice and in material compliance with applicable Law, (2) use reasonable best efforts to preserve intact the Transferred Business Assets (including the goodwill of the Business) and the relationships of Abbott and its business Affiliates with their customers, vendors, suppliers, creditors, agents, landlords, equipment lessors, service providers and operations solely employees, in each case, to the extent relating to the Business, (3) pay all accounts payable and other current obligations of Abbott and its Affiliates, in each case, to the extent related to the Business, when they become due and payable in the ordinary course of business and consistent with past practices andpractice, except for accounts payable or other obligations that are the subject of a good faith dispute, (4) continue to maintain the Books, Records and Files of Abbott and its Affiliates to the extent consistent therewith (and subject related to the restrictions set forth in this Section 5.4(a))Business on a basis consistent with past practice, (y5) each continue to make all material filings and payments with Regulatory Authorities required in connection with the Business in a timely manner, and use reasonable best efforts to maintain in effect all existing Registrations required for the ongoing operation of the Azur Group Entities will use commercially reasonable efforts Business as currently conducted, and, in addition to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any without limiting the generality of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazzforegoing, Azur Abbott shall not not, and shall cause each of the Azur Group Entities its Affiliates not to, directly or indirectly do, or commit to do, any of the following:
(i) declare(A) grant any increase, accrueor announce any increase, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock the wages, salaries, compensation, bonuses, incentives, pension, fringe, perquisite, change in control, retention, severance, termination or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration benefits payable to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in new equity awards to, any equity securities Business Employee or Former Business Employee, (B) establish or increase or promise to establish or increase any benefits under any Employee Plan with respect to any Business Employee or Former Business Employee or (C) enter into, establish, adopt, amend or terminate, or take any action to accelerate the vesting or payment of any other Personcompensation or benefits under, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person Stand-Alone Employee Plan (or any division award or accrual thereunder), except in the case of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose each of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A), (B) sales and (C), (1) as may be required (x) under any Employee Plan or other Contract as in effect on the date hereof or (y) under applicable Law, (2) as would also relate to similarly situated employees of inventory and equipment Abbott or the Continuing Affiliates or (3) as effected in the ordinary course of business and consistent with past practices, practice;
(ii) (A) hire any employee with annual base compensation equal to or greater than €300,000 for employment with the Acquired Companies or Acquired Company Subsidiaries or (B) not individually in excess of $500,000transfer any Business Employee to any Other Abbott Business, other than individuals listed on Schedule 8.1(a)(i)-1;
(viiii) incur enter into, terminate or materially amend any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants Described Contract or other rights to acquire any debt securities or guarantee any debt securitiesContract that, if in effect on the date hereof, would have been a Described Contract;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xviv) (A) adopt sell, assign, convey, transfer or lease (as lessor), license, abandon (including by failing to pay any maintenance or annuity fees), let lapse, dispose of or otherwise make subject to a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or material Encumbrance (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions any Permitted Encumbrance) any Transferred Business Asset (including any Transferred Intellectual Property, Business IP License Agreements or Mixed-Use IP License Agreements or material equipment, in each case, to the covenants set forth extent used in clauses (vthe Business), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or practice, (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement write off, forgive, waive or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign otherwise cancel any material claims accounts receivable of Abbott or material rights, including with respect any of its Affiliates to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, the extent included in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposesthe Transferred Business Assets, except as required by GAAP or in the ordinary course of business consistent with past practice, (C) merge or consolidate with any third party, acquire any material asset or material property of any third party or make any investment in any third party (including through any joint venture), in each case with respect to the Business, or (D) enter into any Contract or arrangement to do any of the foregoing;
(v) amend or modify any of the Constituent Documents of any Acquired Company or Acquired Company Subsidiary;
(vi) issue, sell, grant, pledge or otherwise encumber any Securities or Equity Rights of any Acquired Company or Acquired Company Subsidiary;
(vii) (A) change any material Tax or accounting methods, policies or practices of Abbott or any of its Affiliates (to the extent related to the Business), except as required by GAAP or applicable Law, (B) make or change any material Tax electionelections of the Acquired Companies or the Acquired Company Subsidiaries, or (C) file settle any material Action with respect to Taxes of an Acquired Company or amend any Tax Return Acquired Company Subsidiary (except with respect to Excluded Taxes); provided that Abbott and its Affiliates shall be entitled to take actions described in (A), (B) or (DC) enter into to effectuate the Reorganization after providing reasonable notice to Mylan, except that such notice shall not be required for any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made action described in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing DateReorganization Plan;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxivviii) make any capital expendituresexpenditures or commitments therefor with respect to the Business which are in excess of $2,000,000 individually or $20,000,000 in the aggregate in any six (6) month period;
(A) ship Products to customers other than Affiliates of Abbott ahead of shipping dates requested by customers or otherwise accelerate sales of Products, except for capital expenditures that, when added (B) sell Products to all customers other capital expenditures than Affiliates of Abbott in quantities that are not materially consistent with past shipment and sales practices or (C) engage in any practice that would reasonably be expected to be considered “channel stuffing” or “trade loading” of Products;
(x) accelerate to periods prior to the Closing collections of receivables that would otherwise be expected (based on past practice) to be made on behalf of in periods after the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionClosing; or
(xxvxi) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Business Transfer Agreement and Plan of Merger (Mylan Inc.)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during (a) From the Pre-Closing Period, except as set forth in Section 5.4 date of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or through the Related AgreementsClosing Date, as reasonably necessary to effect the Reorganization (subject to IWT has and in accordance with this Agreement shall, and the Related Agreements), or as otherwise agreed Sellers shall use their best efforts to in writing by Jazz ensure that IWT (such agreement not to be unreasonably withheld, conditioned or delayed), at its sole cost and expense) has and shall: (xi) each of conduct the Azur Group Entities shall conduct its business and operations solely Business in the ordinary course of business and consistent with past practices and, to the extent consistent therewith practice; (and subject to the restrictions set forth in this Section 5.4(a)), (yii) each of the Azur Group Entities will use commercially reasonable its best efforts to preserve the present business organizations and maintain existing relations and goodwill relationships of IWT (including, without limitation, with Governmental Authorities, employeesdistributors, customers, brokersvendors, suppliers suppliers, manufacturers, employees and other Persons others) with which any respect to the Business and all of the Azur Group Entities has significant business relations goodwill associated therewith; (iii) use its best efforts to preserve the material rights of IWT; (iv) not take any action that could reasonably be expected to or would have a Material Adverse Effect or would materially impair, hinder or adversely affect the ability of IWT to consummate the transactions contemplated hereby or by any other Seller Document or IWT Document; (v) deliver to EVTC a copy of each written notice or communication from any Governmental Entity or Regulatory Authority relating to the Business; (vi) perform all material obligations under each Contract; and (zix) subject deliver to applicable Law as agreed in good faith by counsel EVTC all material notices and communications with respect to Jazzthe Business from customers, Azur suppliers, vendors and third parties.
(b) Without limiting the generality of the foregoing, from the date of this Agreement through the Closing Date, the Sellers shall use their best efforts to ensure that IWT has not and shall cause each of the Azur Group Entities not tonot: (i) authorize for issuance, directly issue, sale, delivery or indirectly do, agree or commit to doissue, sell, deliver or pledge (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any of the following:
additional membership interests in IWT; (iii) split, combine or reclassify any IWT Membership Interests, declare, accrue, set aside or pay any dividend or make any other distribution (whether in cash, stock or property or any combination thereof) in respect of any shares of capital stock its IWT Membership Interests or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
its IWT Membership Interests; (iii) amend incur or otherwise alter (or propose assume any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, indebtedness other than in each case (A) sales of inventory and equipment trade payables incurred in the ordinary course of business and consistent with past practicesbusiness; (iv) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for any material obligations of any other person; (v) make any loans, advances or capital contributions to, or (B) not individually in excess of $500,000;
investments in, any other person; (vi) incur any Indebtednessacquire, enter into any new sell, lease, transfer or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation dispose of any Lien (other than a Permitted Lien) on any of the its properties or assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any newpractice, or amend take or suffer any action that would result in the creation, or consent to the imposition, of any lien or encumbrance on any of the properties or assets of IWT; (vii) make any capital expenditure or commitment for additions to property, plant, equipment or other capital assets in excess of fifty-thousand dollars ($50,000); (viii) except in the ordinary course of IWT's business consistent with past practice, amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any existing, Benefit Plan (including any trust Contract or other funding arrangement), other than as required by LawAuthorization;
(ix) except waive any claims or rights of value with respect to the extent required by the terms of any Benefit Plan Business or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require practices; (x) a term in excess of one year make, amend or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change revoke any Tax election, (C) file or amend any Tax Return ; or (Dxi) enter into any closing contract, agreement, settle any Tax claim commitment or assessment relating arrangement to do, or take, or agree (orally or in writing) or otherwise to take or consent to, any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingforegoing actions.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, The Company agrees that, during the Pre-period from the date hereof until the earlier of the Closing Periodor the termination of this Agreement, except as (i) otherwise expressly contemplated hereby; (ii) set forth in Section 5.4 5.1 of the Azur Company Disclosure Schedule; (iii) consented to by Buyer in writing, as contemplated which request for consent will be considered by Buyer in Schedule 1, as good faith; or (iv) required by this Agreement or the Related AgreementsRestructuring Agreement, as reasonably necessary to effect the Reorganization Company shall, and shall cause each of its Subsidiaries, to:
(subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not i) cause its business operations to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely conducted in the ordinary course of business and consistent in compliance with past practices and, to the extent consistent therewith all Laws and Orders and (and subject to the restrictions set forth in this Section 5.4(a)), (yii) each of the Azur Group Entities will use its commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authoritiesintact its assets, employeesproperties, customersbusiness organization in all material respects;
(b) not amend its certificate of formation, brokersoperating agreement or other organizational documents;
(c) not issue, suppliers and other Persons with which any deliver, sell, pledge, dispose of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazzor encumber, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, authorize or commit to dothe issuance, sale, pledge, disposition or encumbrance of any Equity Securities of any class (except upon the exercise of UARs or Options outstanding on the date hereof) of the Company or any of its Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any Equity Securities of, or any other ownership interest in, the following:Company or any of its Subsidiaries;
(id) not declare, accrueset aside, set aside make or pay any dividend or make other distribution, payable in cash, Equity Securities, property or otherwise, with respect to any other distribution in respect of its member interests or any shares of capital stock security or other securitiesright exchangeable or exercisable for, or repurchaseconvertible into, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entityits Equity Securities;
(iie) issuenot reclassify, delivercombine, pledgesplit, encumbersubdivide or redeem, sell purchase or authorize to sell otherwise acquire, directly or indirectly, any shares of capital stock of or other equity interests in any Azur Group Entityits Equity Securities, or any securities convertible into any such shares of capital stock security or other equity interestsright exchangeable or exercisable for, or any rightsconvertible into, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreementits Equity Securities;
(iiif) amend or otherwise alter not (or propose i) incur any amendment or alteration toIndebtedness for (except for short term indebtedness incurred in the Ordinary Course of Business); (ii) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually capital expenditures in excess of $500,000;
100,000; (viiii) incur any Indebtedness, enter into any new sell or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation dispose of any Lien (other than of its properties or assets having a Permitted Lien) on any of the assets of any Azur Group Entities other than value individually or in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity aggregate in excess of $500,000 per annum;
(xix) 100,000 other than for fair consideration in the Ordinary Course of Business; (Aiv) in connection with make any actual loans, advances or alleged breach capital contributions to, or investments in, any other Person on behalf of this Agreement the Company or any Related Agreement of its Subsidiaries; or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(Av) make any change in any annual of the present accounting period or adopt or change a method methods and practices of accounting for Tax purposesits business, except as required by changes in GAAP;
(g) other than in the Ordinary Course of Business and only after consulting with Buyer, not enter into any Material Contracts or License Agreements, provided that without the prior written consent of Buyer, the Company will not enter into any such Contract or Agreement which provides for annual payments in excess of $500,000 or provides for performance more than one year after the date of such Contract or Agreement;
(h) not amend or terminate any Material Contracts or License Agreements;
(i) not modify or amend the employment arrangements with its senior executive officers, except (i) for the payment of annual bonuses and increases in compensation in the Ordinary Course of Business or (ii) in connection with the promotion, relocation or termination of such executive officers in the Ordinary Course of Business, enter into or amend any employment, severance, termination or other similar agreement (except in connection with the hiring of any new employee earning less than $100,000 per year), adopt any new or amend any existing employee benefit plan, program, agreement or arrangement (except as may be required by applicable Lawlaw or as necessary or advisable to comply with Section 409 A of the Code), or make any loans to any of its officers, directors, employees, agents or consultants;
(Bj) not impose any Encumbrances (other than Permitted Encumbrances) upon any of its assets, tangible or intangible;
(k) not delay or postpone the payment of accounts payable and other liabilities outside the Ordinary Course of Business;
(l) not cancel, compromise, waive, or release any right or claim (or series of related rights and claims);
(m) not transfer, assign, or grant any license or sublicense of any rights under or with respect to any Company Intellectual Property;
(n) not take any action, or not fail to take any action that could reasonably be expected to result in the loss, lapse, abandonment, invalidity or enforceability of any Company Intellectual Property;
(o) not enter into any transaction with any Affiliate of the Company, its Subsidiaries or the Equityholders;
(p) not discharge a material liability or Encumbrance outside the Ordinary Course of Business;
(q) not disclose any Confidential Information outside the Ordinary Course of Business;
(r) to the extent that such action would affect the Taxes of the Company or any of its Subsidiaries after Closing, not make or change any Tax material election, (C) change an annual accounting period, adopt or change any accounting method, file or amend any material amended Tax Return or (D) Return, enter into any material closing agreement, settle any material Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;its Subsidiaries; and
(xxiiis) lend money not agree, commit, or adopt any plan or proposal to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do take any of the foregoingactions set forth in clauses (b) through (q) above.
Appears in 1 contract
Conduct of the Business. Azur agrees, as (a) From the date of this Agreement to itself and its Subsidiaries, that, during the earlier of the Closing or the date this Agreement is terminated pursuant to Article VII (the “Pre-Closing Period”), the Company shall, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as expressly required by the terms of this Agreement or with the Related Agreementsprior written consent of Parent, use its commercially reasonable efforts to (i) conduct the Company Business in the ordinary course of business consistent with past practice and to notify Parent promptly (A) after receipt of any communication from any Governmental Authority or inspections of any manufacturing or preclinical or other study site and before giving any submission to a Governmental Authority and (B) prior to making any material change to a study protocol, adding new studies or trials, making any material change to a manufacturing plan or process, or making a material change to the development timeline for any of its product candidates or programs, (ii) maintain good working relationships with Persons having a material business relationship with the Company and (iii) keep in effect casualty, product liability, workers’ compensation and other insurance policies in coverage amounts substantially similar to those in effect as reasonably necessary of the date hereof to effect the Reorganization extent applicable to the Company or its business.
(subject to and in accordance with b) Without limiting the generality of Section 5.2(a), except as expressly required by the terms of this Agreement and or with the Related Agreements), or as otherwise agreed to in writing by Jazz prior written consent of Parent (such agreement which shall not to be unreasonably withheld, conditioned or delayed), (x) each of during the Azur Group Entities Pre-Closing Period, the Company shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the followingnot:
(i) terminate, employ or engage any Company Personnel;
(ii) amend the Constitutive Documents of the Company, the Voting Agreement or the Investor Rights Agreement;
(iii) issue any Company Stock, or any rights, warrants, options, calls, commitments or other agreements of any character to purchase or acquire any Company Stock or any other award or instrument which is valued based upon the Company Stock;
(iv) split, combine or reclassify any Company Stock;
(v) declare, accrue, set aside or pay any dividend on, or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000Company Stock;
(vi) create, incur or assume any new Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell sell, or amend, modify or change any term of, any debt securities or warrants share options, warrants, calls or other rights to acquire any debt securities of the Company, or guarantee or endorse any debt securitiesIndebtedness of another Person, make any loans, advances or capital contributions to, or investments in, any other Person, enter into any Contract to maintain any financial statement condition of another Person;
(vii) create sell, license, abandon or permit the creation subject to any Encumbrance, or otherwise dispose of any Lien properties or assets of the Company;
(other than viii) with respect to Intellectual Property, (A) sell, assign, license, sublicense, encumber, impair, abandon, allow to lapse, transfer or otherwise dispose of any Intellectual Property, (B) fail to use commercially reasonable efforts to file and prosecute any pending Patent applications, or to renew or extend, as applicable, Company Intellectual Property or (C) disclose or otherwise make available or accessible any material confidential Know-How to any Person who is not subject to a Permitted Lienwritten agreement to maintain the confidentiality of such Know-How or to the extent such disclosure is outside the ordinary course of business consistent with past practice;
(ix) on any acquire or agree to acquire (A) by merging or consolidating with, or by purchasing all or a substantial portion of the assets of, or by purchasing all or a substantial portion of the Capital Stock of, or by any Azur Group Entities other manner, any business or any other Person or any division thereof, or (B) any assets, other than in the ordinary course of business and consistent with past practices;
(viii) except practice, that are material, individually or in the ordinary course of business and consistent with past practicesaggregate, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan Company or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entityits business;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severancepartnership, termination joint venture, joint development or other similar payment, arrangement with one or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entitymore Persons;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company;
(xii) commence, participate in or agree to commence or participate in any bankruptcy, voluntary liquidation, dissolution, winding up, examinership, insolvency or similar proceeding in respect of the Company;
(Bxiii) enter into any Contract (or any substantially related Contracts, taken together) (A) that would constitute a Company Material Contract, (B) that would reasonably be expected to prevent or materially impede, interfere with or delay the consummation by the Company of the transactions contemplated by this Agreement or (C) with any Affiliate of the Company;
(xiv) hire or retain any individual for employment or services with the Company or adopt, amend or terminate any Plan for the benefit of any employee or service provider of the Company;
(xv) (A) grant or provide any change of control, severance, retention, termination or similar payments or benefits to any Company Personnel or other individual (provided, however, that the Company may make severance or termination payments to employees in accordance with the terms of agreements between the Company and such employees as in effect on the date of this Agreement), (B) increase the compensation, bonus opportunity or other benefits of any Company Personnel, (C) pay to any current or former Company Personnel any compensation or benefit not provided for under any Plan, other than the payment of base cash compensation in the ordinary course of business consistent with past practice, (D) enter into trust, annuity or insurance contract or similar agreement or exercise take any discretion providing for acceleration other action to fund or otherwise secure the payment of any compensation or benefit of any current or former Company Personnel, or (E) take any action to accelerate the time of payment or performance as a result of a change of control vesting of any Azur Group Entitycompensation or benefit of Company Personnel;
(xvi) renew waive, release or enter into assign any Contract with material rights or claims under, fail to take a material required action under, commit a material breach of, or materially modify, amend or terminate any non-compete or exclusivity provisions Company Material Contract, in each case, in a manner that would contractually restrict adversely affect the Company Business as currently conducted or limit the operations of any Azur Group Entity in any material respectcontemplated to be conducted;
(xvii) (A) adopt or make any changes to any Tax accounting methods, principles, practices or policies, (B) make, revoke or change any Tax election, (C) enter intointo any closing agreement or other agreement with a Tax Authority affecting a Tax liability or file any request for Tax rulings or special Tax incentives with any Tax Authority, (D) amend any Tax Return or permit file any Tax Return in a manner inconsistent with past practice, (E) surrender or compromise any right to claim a Tax refund, (F) consent to any waiver or extension of the assets owned statute of limitations applicable to any Tax Return or used by it to become bound by any contract that is Tax claim or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a)assessment, or (BG) modify in settle or compromise any material respectclaim, amend in any material respect notice, audit, assessment or terminate any Material Contractother proceeding relating to Taxes;
(xviii) change in any material respect any of the accounting methods used by the Company or revalue any material assets of the Company, in each case unless required by GAAP or applicable Law;
(xix) bring, settle or compromise any Action on terms requiring the Company to take any material action or to abstain from taking any material action;
(xx) enter into a lease or sublease of real property (whether as a lessor, sublessor, lessee or sublessee);
(xxi) make any Contractcapital expenditures;
(xxii) materially delay payment of any account payable beyond its due date, or the date such liability would have been paid or collected, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term practice or to the extent the Company is contesting such payable or liability in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;good faith; and
(xxiii) lend money authorize any of, or commit, resolve or agree, whether in writing or otherwise, to take any person (except for business expenses to its current employees of, the foregoing actions prohibited in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingthis Section 5.2(b).
Appears in 1 contract
Samples: Agreement and Plan of Merger (VectivBio Holding AG)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during (a) From the Pre-date hereof until the Closing PeriodDate, except (i) as set forth in Section 5.4 of the Azur Disclosure Scheduleon Schedule 6.04, (ii) as contemplated in Schedule 1otherwise specifically required by this Agreement, (iii) as required by this Agreement or the Related AgreementsLaw, (iv) as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed consented to in writing by Jazz Buyer (such agreement which consent will not to be unreasonably withheld, conditioned delayed or delayedconditioned), or (v) for the use of available cash to repay any Funded Debt and pay Transaction Expenses prior to the Closing, the Company and HIG Holdco shall (x) each use its commercially reasonable efforts to carry on the business of HIG Holdco, the Azur Group Entities shall conduct Company and its business and operations solely Subsidiaries in the ordinary course of business and consistent with past practices and, to substantially in the extent consistent therewith (same manner as previously conducted and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authoritiesshall not, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities its Subsidiaries not to, directly or indirectly do, or commit to do, any of the following:
(i) declaresell, accruetransfer, set aside lease, license, mortgage, pledge or pay otherwise subject to any dividend Lien (other than Permitted Liens) any material portion of the assets or make any other distribution in respect property (tangible or intangible) of any shares of capital stock or other securitiesthe Company and its Subsidiaries, or repurchase, redeem or otherwise acquire enter into a Contract to do any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entitythe foregoing;
(ii) issueamend, deliverterminate, pledgemodify, encumberextend, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entityrenew, or suspend any securities convertible into Material Contract or exercise or waive any material options or rights under any Material Contract unless (A) done in the ordinary course of business, and (B) such shares Material Contract is a purchase order for greater than $500,000 or a Contract with one of capital stock the ten (10) largest customers (by dollar volume) of the Company and its Subsidiaries, taken as a whole, during fiscal year 2018, provided that if any of Xxxx Xxxxxxxxxx, Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxxxx, Xxxx Xxxx or other equity interestsXxx Xxxx has knowledge of such amendment, termination, modification, extension, renewal, suspension, exercise, or any rightswaiver, warrants or options the Company will give notice of such matter to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this AgreementBuyer;
(iii) amend acquire, or otherwise alter enter into any Contract to make an acquisition (whether by merger, acquisition of stock or propose any amendment assets, or alteration tootherwise) the Governing Documents of any Azur Group Entity business or amend any terms line of the outstanding securities of any Azur Group Entitybusiness;
(iv) effect modify or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire amend the stock or all or substantially all organizational documents of the assets or rights of any other Person Company or any division of any other Personits Subsidiaries;
(v) sellmake an election or take any action to change the status of the Company or any of its Subsidiaries (as a corporation, leasepartnership or disregarded entity) for federal, license, assign, transfer, abandon, convey state or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000local income Tax purposes;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating (x) increase the compensation payable by it to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
Company’s or its Subsidiaries’ employees whose annual base salary is $100,000 or more, (viiiy) except in the ordinary course of business and consistent with past practicespractice, enter into increase the compensation payable by it to any of the Company’s or adopt any newits Subsidiaries’ employees whose annual base salary is less than $100,000, or amend (z) increase the coverage or terminate benefits available under any existingseverance pay, Benefit Plan (including any trust termination pay, deferred compensation, bonus or other funding incentive compensation plan or arrangement, or any Plan, except for the payment of bonuses payable to certain officers and employees of the Company or any of its Subsidiaries in connection with the consummation of the transactions contemplated by this Agreement (which will be included as part of the Transaction Expenses);
(vii) make any change in its accounting or Tax reporting methods, principles or policies other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (Aviii) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase changes to the compensation payable to any Employee, Independent Contractor, consultant (or similar relationshipmanagement personnel set forth on Schedule 6.04(a)(viii) or director implement any operational decisions outside of any Azur Group Entity the ordinary course of a material nature;
(Cix) pay any severance or bonus fail to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entitycontinue in full force and effect the insurance coverage under the Insurance Policies;
(x) enter into any Contract pursuant fail to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any maintain all books and records of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than Company and its Subsidiaries in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annumpractice;
(xixxi) other than (A) in connection with any actual or alleged breach of this Agreement fail to pay the Company’s or any Related Agreement of its Subsidiaries’ debts, Taxes or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or other similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made obligations in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiiixii) lend money fail to collect Accounts Receivable in a manner consistent with past practice;
(xiii) fail to maintain the properties and assets owned, operated or used by the Company and its Subsidiaries consistent with past practices;
(xiv) fail to comply in all material respects with any applicable Laws; or
(xv) authorize, agree, resolve or consent to any person of the foregoing.
(except for business expenses b) Nothing in this Section 6.04 is intended to result in HIG Seller, the Unitholders, the Company or any of its current employees in Subsidiaries ceding control to Buyer of the Company’s or any of its Subsidiaries’ basic ordinary course of business and consistent with past practices) or guarantee commercial decisions prior to the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingDate.
Appears in 1 contract
Samples: Purchase Agreement (Arcosa, Inc.)
Conduct of the Business. Azur agrees(a) Except as otherwise contemplated by this Agreement or the other Transaction Documents, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except required by applicable Law or as set forth in Section 5.4 5.01 of the Azur Company Disclosure ScheduleLetter, as contemplated in Schedule 1from the date hereof to the Closing, as required by this Agreement or unless a majority-in-interest of the Related Agreements, as reasonably necessary Investors (based on the number of Preferred Shares to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as be purchased hereunder) otherwise agreed to consents thereto in writing by Jazz (such agreement consent not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities Company and its Subsidiaries shall conduct its business and operations solely their respective businesses in all material respects in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (practice and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will shall use commercially reasonable efforts consistent with past practice to preserve the relationships of the Company and maintain existing relations and goodwill its Subsidiaries with Governmental Authoritiestheir respective material customers, material suppliers, employees, customersconsultants, brokerscontractors and others having material relationships with the Company and such Subsidiaries and maintain the business operations, suppliers organization and other Persons with which any goodwill of the Azur Group Entities has significant business relations and Company.
(zb) subject Without limiting the generality of Section 5.01(a), except as otherwise expressly required by this Agreement, as set forth in Section 5.01 of the Company Disclosure Letter, or, solely with respect to clause (v) below, as required by applicable Law as agreed Law, from the date hereof to the Closing, unless a majority-in-interest of the Investors (based on the number of Preferred Shares to be purchased hereunder) otherwise consents thereto in good faith by counsel to Jazzwriting, Azur the Company shall not not, and shall cause each of the Azur Group Entities its Subsidiaries not to, directly or indirectly do, or commit to do, any of the followingindirectly:
(i) establish a record date for, declare, accrue, set aside for payment or pay make payment in respect of, any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell upon any shares of capital stock of the Company;
(ii) redeem, repurchase or other equity interests in otherwise acquire any Azur Group Entity, or any securities convertible into any such shares of the Company’s capital stock or other equity or voting interests, or any rights, warrants or options to acquire any such shares of its capital stock or other equity interestsor voting interests of the Company or any of its Subsidiaries, except with respect other than repurchases of capital stock in the ordinary course of business pursuant to exercise any Company Plan (or agreement thereunder) in effect as of Azur Options outstanding prior to the date of this Agreementhereof;
(iii) amend the Company Charter Documents (other than filing the Certificate of Designations as provided hereunder), the committee charter of the Compensation Committee of the Board or otherwise alter (or propose any amendment or alteration to) corporate governance policy of the Governing Documents Company pertaining to members of any Azur Group Entity the Board, in each case other than as the Board reasonably determines is required in order to comply with applicable laws and regulations, or amend any terms of or vacate the outstanding securities of any Azur Group EntityCredit Agreement Consent;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entityauthorize, recapitalizationissue, reclassification of shares, stock split, reverse split combine, subdivide or similar transaction with respect to each Azur Group Entityreclassify any capital stock, or make any investment in any equity securities of any other Personexercisable for, including any joint ventureexchangeable for or convertible into capital stock, or acquire the stock other equity or all or substantially all voting interests of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, Company other than in each case (A) sales the authorization and issuance of inventory the Preferred Stock in accordance with this Agreement and equipment the Certificate of Designations and any Conversion Shares and (B) issuances of capital stock, or securities exercisable for, exchangeable for or convertible into capital stock, of the Company to any Participant in the ordinary course of business and consistent with past practicespursuant to any Company Plan (or agreement thereunder) in effect as of the date hereof;
(v) change any of the methods of accounting, accounting practices or (B) not individually policies in excess any material respect of $500,000the Company or any of its Subsidiaries, other than such changes as required by GAAP or a Governmental Entity;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severancebetween the Company or its Subsidiaries, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreementone hand, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit and any of the assets owned Company’s directors (including director nominees or used by it to become bound by candidates), officers or stockholders (in their capacity as such), on the other hand, including any contract that is stockholder agreement, investor rights agreement, board representation or would constitute a Material board nomination agreement or any similar Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v)than, (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course case of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filingofficers, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if practice in connection with such election, adoption, change, amendment, agreement, settlement, surrender, consent officer’s employment or take or omit to take any other action would have that could reasonably be expected to result in a modification to the effect of increasing the Tax liability composition of the Azur Group Entities Board, grant any consent rights with respect to any actions by the Company or its Subsidiaries to any stockholder or that otherwise would reasonably be expected to limit, alter or modify in any material respect the Jazz Group Entities for any period ending after rights that the Investor is expected to have following the Closing Date or decreasing any Tax attribute under the Investor Rights Agreement and Certificate of any Azur Group Entity or the Jazz Group Entities existing on the Closing DateDesignations;
(xxiiivii) lend money merge or consolidate the Company or any of its Subsidiaries with any Person;
(viii) (A) file, or consent by answer or otherwise to the filing against the Company or any of its Subsidiaries of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, insolvency, reorganization, moratorium or other similar Law of any jurisdiction, (B) make an assignment for the benefit of the creditors of the Company or any of its Subsidiaries, (C) consent to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to the Company or any of its Subsidiaries or with respect to any person substantial part of its or their property, (except D) dissolve, liquidate or wind up the Company or (E) take any corporate action for the purpose of any of the foregoing;
(ix) take any action for which consent of any of the Investors would have been required (A) pursuant to Section 2.06 of the Investor Rights Agreement had the Investor Rights Agreement been in effect as of the date hereof or (B) pursuant to the Certificate of Designations had the Certificate of Designations been in effect as of the date hereof;
(x) (A) acquire, in a single transaction or a series of related transactions, any business expenses to its current employees or Person, by merger or consolidation, purchase of assets, properties, claims or rights or equity interests, or by any other manner, for an aggregate purchase price (when taken together with all such acquisitions) in excess of $1,000,000, or (B) divest, in a single transaction or a series of related transactions, any assets, properties, claims or rights or equity interests for an aggregate sales price (when taken together with all such divestitures) in excess of $1,000,000; provided that acquisitions or dispositions of goods, products or services in the ordinary course of business and consistent with past practices) shall not constitute acquisitions or guarantee the indebtedness divestitures for purposes of any Personthis clause (ix);
(xxivxi) make take any capital expendituresaction that causes, except or would reasonably be expected to cause, the Common Stock to cease to be eligible for capital expenditures that, when added to all other capital expenditures made listing on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionNASDAQ; or
(xxvxii) agree agree, authorize, resolve or commit recommend, whether in writing or otherwise, to do do, or take any action reasonably likely to lead to or result in, any of the foregoing.
Appears in 1 contract
Conduct of the Business. Azur agreesFrom the date of this Agreement through the earlier of the Closing and the termination of this Agreement in accordance with Article VI, the Company and the Subsidiaries shall carry on the operation of the Business in the ordinary course and shall use their respective commercially reasonable efforts not to take any action inconsistent with the provisions of this Agreement. Except as to itself and its Subsidiaries, that, during the Pre-Closing Period, except as expressly set forth in Section 5.4 this Agreement (including without limitation actions of the Azur Disclosure ScheduleCompany necessary for the cancellation of Unvested Options), as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement Company and the Related Agreements)Subsidiaries shall use their respective commercially reasonable efforts to maintain the present character and quality of its business, or as otherwise agreed including its present operations, physical facilities, working conditions and relationships with distributors, lessors, licensors, suppliers, customers and employees. Without limiting the generality of the foregoing, unless specifically consented to by Parent in advance in writing by Jazz (such agreement consent not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions or expressly set forth in this Section 5.4(a))Agreement, (y) each of neither the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which Company nor any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the followingSubsidiaries shall:
(ia) declare, accrue, set aside or pay incur any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entityindebtedness for borrowed money;
(iib) issueassume, deliverguarantee, pledge, encumber, sell endorse (other than endorsements for deposit or authorize to sell any shares of capital stock of or other equity interests collection in any Azur Group Entitythe ordinary course), or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division responsible for obligations of any other Person;
(vc) authorize for issuance, issue (other than pursuant to the exercise or conversion of Options outstanding as of the date hereof), sell, leasedeliver or agree or commit to issue, licensesell or deliver (whether through the issuance or granting of any option or other right to acquire or otherwise) any of its capital stock or equity interest of any class or any other securities or securities convertible into shares of its capital stock or equity interests, assignincluding any Options; AGREEMENT AND PLAN OF MERGER
(d) amend, waive or modify any terms of any Option, including by directly or indirectly increasing or reducing the per share exercise price or the number of shares of Common Stock subject to any Option;
(e) declare, set aside, make, pay or incur any obligation to pay any dividend or distribution on its capital stock (whether payable in cash, stock, property or a combination thereof) or enter into any voting agreement with respect to its capital stock;
(f) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other equity interests or securities, including any Options;
(g) make any change to the Company’s Certificate of Incorporation or Bylaws, the UK Subsidiary’s Memorandum and Articles of Association or the Australian Subsidiary’s Constitution;
(h) mortgage, pledge or otherwise encumber any of its assets or sell, transfer, abandon, convey license or otherwise dispose of any of its assets, securities, rights except for the sale or property license of any Azur Group Entity, other than in each case (A) sales of inventory its products and equipment services to Customers in the ordinary course of Business;
(i) cancel, release or assign any indebtedness owed to it or any claims or rights held by it;
(j) make any investment or commitment of a capital nature either by purchase of stock or securities, contributions to capital, business and consistent with past practicesor product line acquisitions, property transfer or otherwise, or (B) by the purchase of any property or assets of any other Person, except for such investments, commitments, contributions, acquisitions or property transfers not individually in excess of $500,00025,000 in the aggregate;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (Ak) adopt a plan of partial or complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or otherwise permit its corporate existence to be suspended, lapsed or revoked;
(Bl) enter into terminate any agreement Contract, make any material change in or waive or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of material right under any Azur Group Entity;
(xvi) renew Contract, or enter into any Contract with or renew any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than (i) with respect to Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) that do not include special pricing terms or require product modifications or (xxivii) terminations, changes, waivers or exercises of this Section 5.4(a)rights under “click through” end user license agreements, or (B) modify in any material respect, amend each case entered into between the Company and Customers in any material respect or terminate any Material Contractthe ordinary course of Business;
(xviiii) enter into or modify any Contractemployment Contract or extend any offer of employment, (ii) change the status, title or responsibilities, including without limitation, termination or promotion, of any officer of the Company or any of the Subsidiaries, or promote any employee (who is not an officer as of the date of this Agreement) to an officer position, (iii) pay any compensation to or for any employee who is an officer or director as of the date hereof other than in the ordinary course of business Business and consistent with past practices and that does not require pursuant to employment arrangements in effect as of the date hereof, (xiv) a term pay or agree to pay any bonus, incentive compensation, equity or equity-related compensation, service award, severance, retention, change in excess of one year control, “stay bonus” AGREEMENT AND PLAN OF MERGER or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other like benefit other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) pursuant to the commencement terms of any litigation for patent infringement Company Pension Plan or Benefit Plan, as in response to existence on the date hereof, (v) enter into, materially modify or terminate any certification of non-infringement Company Pension Plan or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any changeBenefit Plan, other than as required by IFRSby, or to comply with, applicable law, or (vi) cause the “employment loss” (as defined in its accounting policies, procedures or practicesthe WARN Act) of any employee of the Company;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(An) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except or accounting practice other than as required by concurrent changes in GAAP, applicable Law, law or any Governmental Authority;
(Bo) make or change any Tax election, (C) file material election in respect of Taxes; adopt or amend change any Tax Return or (D) accounting method in respect of Taxes; enter into any closing Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement (excluding commercial agreements entered into in the ordinary course of business the primary purpose of which does not relate to Tax); settle or compromise any Tax claim claim, notice, audit report or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund in respect of Taxes, ; file any amended or other material Tax Return; or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course respect of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing DateTaxes;
(xxiiip) lend money to any person (except for business expenses to its current employees in write up, write down or write off the ordinary course of business and consistent with past practices) or guarantee the indebtedness book value of any Personof the Company’s or any of the Subsidiaries’ assets, except as required by GAAP for accounts receivable that are not collectible, or the depreciation and amortization or impairment of assets in accordance with GAAP consistently applied;
(xxivq) make waive, release, assign, settle or compromise any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf material claims or settle any material Proceeding;
(r) do any act which would cause any representation or warranty of the Azur Group Entities during Company or any of the Pre-Closing PeriodSubsidiaries in this Agreement to be or become untrue in any material respect;
(s) form or acquire any subsidiary;
(t) transfer, do not exceed $1 millionassign or exclusively license to any Person any Intellectual Property Rights; or
(xxvu) directly or indirectly take, agree to take or commit permit to do occur any of the foregoingforegoing actions.
Appears in 1 contract
Samples: Merger Agreement (Netsuite Inc)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except as set forth in Section 5.4 Each of the Azur Disclosure ScheduleCompany and Parent covenants and agrees that from the date hereof through the Closing Date, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities party shall conduct its business only in the ordinary course, consistent with past practices, and operations solely in shall not enter into any material transactions outside the ordinary course of business and consistent with past practices and, to without the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each prior written consent of the Azur Group Entities will other party, and shall use its commercially reasonable efforts to preserve and maintain existing relations and goodwill intact its business relationships with Governmental Authorities, employees, customersclients, brokerssuppliers, suppliers contract manufacturing organizations, contract research organizations and other Persons with which any third parties. Without limiting the generality of the Azur Group Entities has significant business relations foregoing and except as set forth on Schedule 6.1 or otherwise provided in this Agreement, from the date hereof through and including the Closing Date, without the other party’s prior written consent (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur which shall not be unreasonably conditioned, withheld or delayed), neither the Company nor Parent shall, and the Company shall cause each of the Azur Group Entities its Subsidiaries not to, directly or indirectly do, or commit to do, any of the following:
(ia) declareamend, accruemodify or supplement its certificate of incorporation or bylaws or other organizational or governing documents, set aside or pay engage in any dividend complete or make partial reorganization, reclassification, liquidation, dissolution or similar transaction, provided that the Company may amend, modify or supplement its certificate of incorporation to the extent necessary to authorize additional equity securities to be sold in, or underlying debt securities sold in, the Permitted Financing; and provided that Parent may extend, in accordance with its organizational documents and the Prospectus, the deadline by which it must complete its Business Combination (an “Extension”), and no consent of any other distribution party shall be required in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entityconnection therewith;
(iib) issueamend, deliverwaive any provision of, pledgeterminate prior to its scheduled expiration date, encumberor otherwise compromise in any way or relinquish any material right under, sell or authorize to sell any shares of capital stock of Material Contract or other equity interests in any Azur Group Entityright or asset of the Company or Parent, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreementas applicable;
(iiic) amend or otherwise alter (or propose any amendment or alteration to) solely in the Governing Documents of any Azur Group Entity or amend any terms case of the outstanding securities of Company, modify, amend, assign or enter into any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entitycontract, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sellagreement, lease, licenselicense or commitment, assignincluding for capital expenditures, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than that would be considered a Material Contract if in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) effect on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) date hereof, except in the ordinary course of the Company’s business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Lawpractice;
(ixd) except to solely in the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as case of the date of this Agreement Company, establish any Subsidiary or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade unionline of business;
(xive) contribute make any material amount to any trust capital expenditures in excess of $500,000 (individually or other arrangement funding any Benefit Plan, except to in the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Lawaggregate);
(xvf) (A) adopt a plan sell, lease, license or otherwise dispose of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned Company’s or used by it Parent’s, as applicable, material assets, except pursuant to become bound by any contract that is existing contracts or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) commitments or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of the Company’s business and or Parent’s business (as applicable) consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annumpractice;
(xixg) other than (A) in connection split, combine, recapitalize or reclassify, or pay, declare or promise to pay any dividends or other distributions (regardless of form) with any actual respect to, its capital stock or alleged breach of this Agreement or any Related Agreement or other equity securities; (B) the commencement of pay, declare or promise to pay any litigation for patent infringement in response other amount to any certification of non-infringement stockholder, shareholder or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, equityholder in its accounting policiescapacity as such (which for the avoidance of doubt does not include payment of salary, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposesbenefits, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case commissions and other than elections, filings, settlements, closing agreements, extensions or waivers regular and necessary customary payments made in the ordinary course of business consistent with past practices); or (C) if such electionexcept as contemplated by any Additional Agreement, adoptionamend any term, change, amendment, agreement, settlement, surrender, consent right or obligation with respect to any outstanding shares of its capital stock or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Dateequity securities;
(xxiiih) lend money (A) make any loan, advance or capital contribution to any person Person; (B) incur any Indebtedness, including drawings under the lines of credit, if any, other than (1) loans evidenced by promissory notes made to Parent as working capital advances as described in the Prospectus, (2) intercompany Indebtedness or (3) in connection with the Permitted Financing; or (C) repay or satisfy any Indebtedness, other than the repayment of Indebtedness in accordance with the terms thereof;
(i) suffer or incur any Lien, except for Permitted Liens, on the Company’s or Parent’s, as applicable, assets;
(j) delay, accelerate or cancel, or waive any material right with respect to, any receivables or Indebtedness owed to the Company or Parent, as applicable, or write off or make reserves against the same;
(k) merge or consolidate or enter a similar transaction with, or acquire all or substantially all of the assets or business expenses of, any other Person; make any material investment in any Person; or be acquired by any other Person;
(l) terminate or allow to lapse any insurance policy protecting any of the Company’s or Parent’s assets, unless simultaneously with such termination or lapse, a replacement policy underwritten by an insurance company of nationally recognized standing having comparable deductions and providing coverage equal to or greater than the coverage under the terminated or lapsed policy for substantially similar premiums or less is in full force and effect;
(m) adopt or amend any severance, retention or other employee plan or fail to continue to make timely contributions to each benefit plan in accordance with the terms thereof;
(n) institute, waive, release, assign, settle or agree to settle any Action before any Authority, in each case in excess of $100,000 (exclusive of any amounts covered by insurance) or that imposes injunctive or other non-monetary relief on, or involves an admission of wrongdoing by, such party;
(o) except as required by U.S. GAAP (including with respect to the SEC Warrant Liability), make any material change in its current employees accounting principles, methods or practices or write down the value of its assets;
(p) solely in the case of the Company, voluntarily incur any liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $250,000 individually or $500,000 in the aggregate other than pursuant to the terms of a Material Contract or a Plan;
(q) change its principal place of business or jurisdiction of organization;
(r) solely in the case of the Company, close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(s) fail to maintain its Books and Records in all material respects in the ordinary course of business consistent with past practice;
(t) issue, sell, grant, redeem, repurchase or incur any Lien on any Equity Interests or other securities or any options, warrants, commitments or rights of any kind in respect thereof (other than (i) with respect to the Company, the exercise of any Company Option outstanding on the date hereof, (ii) with respect to Parent, any redemption by Parent of Parent Class A Shares held by its public stockholders pursuant to Section 6.6, (iii) with respect to Parent, as otherwise contemplated by this Agreement or any Additional Agreement, or (iv) with respect to the Company, the Permitted Financing;
(u) (A) make, change or revoke any material Tax election; (B) change any annual Tax accounting periods; (C) settle or compromise any material claim, notice, audit report or assessment in respect of Taxes of the Company; (D) enter into any Tax allocation, Tax sharing, Tax indemnity or other closing agreement relating to any Taxes of the Company; or (E) surrender or forfeit any right to claim a material Tax refund;
(v) enter into any transaction with or distribute or advance any assets or property to any of its Affiliates, other than the payment of salary and benefits in the ordinary course;
(w) solely in the case of the Company, other than as required by a Plan, as set forth on Schedule 6.1(w) or as explicitly contemplated hereunder, (A) increase or make any material change in the compensation or benefits of any employee or other individual service provider of the Company other than in the ordinary course of the Company’s business consistent with past practice, (B) accelerate the vesting or payment of any compensation or benefits of any employee or other individual service provider of the Company, (C) terminate without “cause” any employee or other individual service provider of the Company, (D) hire or engage any new employee or other individual service provider of the Company if such new employee or individual service provider will receive annual base compensation in excess of $100,000, (E) make any loan to any present or former employee or other individual service provider of the Company, other than advancement of expenses in the ordinary course of business consistent with past practices, or (F) enter into, amend or guarantee the indebtedness of terminate any Personcollective bargaining agreement or other agreement with a labor union or labor organization;
(xxivx) make solely in the case of the Company, enter into or amend any capital expendituresAffiliate Transactions;
(y) solely in the case of the Company, except for capital expenditures thatenter into any agreement, when added understanding or arrangement with respect to the voting of equity securities of the Company;
(z) fail to duly observe and conform in all material respects to all other capital expenditures made on behalf of applicable Law, including the Azur Group Entities during the Pre-Closing PeriodExchange Act, do not exceed $1 millionand Orders; or
(xxvaa) agree or commit to do any of the foregoing.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during From the Pre-Closing Period, except as set forth in Section 5.4 date hereof until the earlier of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with termination of this Agreement and the Related Agreements)Closing Date, or except (i) as otherwise agreed to set forth on Schedule 5.01, (ii) if the Parent shall have consented in writing by Jazz (such agreement which consent shall not to be unreasonably withheld, conditioned or delayed)) or (iii) as otherwise expressly contemplated by this Agreement, (x) each of the Azur Group Entities Company shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each Operating Subsidiary to (1) conduct its business only in the Ordinary Course of Business (except as required to comply with any COVID-19 Measures and to reasonably preserve the health and safety of Company employees in connection with the COVID-19 Pandemic)); (2) maintain the present business organization of the Azur Group Entities not toCompany Group, directly or indirectly do, or commit to do, any conduct the operations of the followingrespective businesses of the members of the Company Group in compliance with applicable Laws in all material respects, maintain in full force and effect all Permits of the Company Group that are required for the Company Group to operate its businesses, and preserve the assets and properties of the Company Group in good repair and condition; (3) use reasonable best efforts to preserve intact the relationships with the Company Group’s customers, suppliers, licensors, licensees, advertisers, partner banks, custodians, employees and other third parties having significant business dealings with the Company Group and (4) without limiting the generality of the foregoing, not:
(ia) declareexcept for issuances of Common Stock as may result from the exercise of Options outstanding under the Company Incentive Plan as of the date hereof in accordance with the applicable employee stock option agreements existing thereunder as of the date hereof, accrue, set aside or pay any dividend or make any other distribution in respect issuances of any replacement certificates for shares of capital stock or other securitiesCommon Stock, or repurchaseissue, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issuesell, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party subject to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey Lien or otherwise dispose of any assets, securities, rights of its equity securities or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities convertible into, or options with respect to, or warrants to purchase or other rights to acquire subscribe for, any debt securities or guarantee any debt of its equity securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (Ab) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entityreorganization;
(xvic) amend or authorize any amendment to its Organizational Documents;
(d) make any redemption or purchase of its equity interests;
(e) pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to its equity or other securities, except for any dividend paid in cash in the Ordinary Course of Business that does not reduce Cash below the Target Cash Amount;
(f) sell, lease, assign, license, convey or otherwise transfer or dispose of any material assets or properties or permit any mortgage or other Lien on any material assets or properties of the Company Group;
(g) sell, assign, transfer or license any Company Intellectual Property, except for licenses in the Ordinary Course of Business;
(h) breach, amend, modify, terminate, fail to renew or waive any provision under any Material Contract, or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit that, if existing on the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) date of this Section 5.4(a)Agreement, or (B) modify in any material respect, amend in any material respect or terminate any would be a Material Contract;
(xviiii) terminate, amend, modify, relinquish, fail to renew or otherwise suffer to terminate any Permit;
(j) make, accelerate or defer any capital expenditures other than making budgeted capital expenditures in the Ordinary Course of Business consistent with the annual budget made available to the Parent;
(k) enter into any ContractContract or transaction with any of its employees outside the Ordinary Course of Business, other than in the ordinary course of business and consistent or enter into any Contract or transaction with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annumInsider;
(xixl) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable LawLaw or under the terms of any Company Employee Benefit Plan, (Bi) grant or announce any severance or termination pay policies, any incentive awards, any retention, sale or change of control compensation, or any increase in the salaries, bonuses, commissions or other compensation, remuneration and benefits payable by the Company Group to any of its officers or employees; (ii) increase the benefits under any Company Employee Benefit Plan; or (iii) terminate or materially amend any Company Employee Benefit Plan or adopt any material arrangement for the current or future benefit or welfare of any officer or employee of the Company Group that would be a Company Employee Benefit Plan if it were in existence as of the date hereof;
(i) make any payment to or for the benefit of any employee, officer, director or equityholder of the Company Group or any entity in which any such Persons owns any beneficial interest (other than any publicly held corporation whose stock is traded on a national securities exchange or in the over-the-counter market and less than 1% of the stock which is beneficially owned by any of such Persons), except for the payment of salary or other employment-related compensation in the Ordinary Course of Business, or (ii) make or obligate itself to make any payment to or for the benefit of any Person in contemplation of the change in control of any member of the Company Group;
(n) Make any loans, advances or capital contributions to, or investments in, any Person;
(o) terminate any Company Group Employee outside of the Ordinary Course of Business;
(p) (i) conclude or agree to any corrective action plans, consents, decrees, actions or orders, or (ii) cancel, compromise or settle any claim that is related to or affects the Company Group, or waive or release any rights of any member of the Company Group, in either case in an amount in excess of $50,000 individually or $100,000 in the aggregate or involving any non-cash payments or non-monetary relief or restrictions and which do not place any restrictions on the operations of any member of the Company Group;
(q) make or change any Tax electionelection in respect of Taxes, (C) file or amend any filed Tax Return Return, adopt or (D) request permission of any taxing authority to change any accounting method in respect of Taxes, enter into any closing agreementagreement in respect of Taxes, settle any Tax claim or assessment relating to any in respect of the Azur Group EntitiesTaxes, surrender or allow to expire any right to claim a material refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course respect of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing DateTaxes;
(xxiiir) lend money to make any person (except for business expenses to change in any method of accounting or accounting practice policy, practices or principles, or change its current employees in the ordinary course of business and consistent with past practices) reserve policies other than as required by GAAP or guarantee the indebtedness of any Personapplicable Law;
(xxivs) issue any note, bond or other debt security, or create, incur, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, other than Indebtedness under the Credit Agreement as in effect as of the date hereof and with respect to which the Company Group’s obligations will be released in full at or prior to the Closing;
(t) accelerate, beyond the normal collection cycle, the collection of accounts receivable or defer the payment of any Liability outside the Ordinary Course of Business;
(u) cancel or terminate any insurance policies or permit any of the coverage thereby to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies providing, to the extent reasonably available, coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(v) take any actions with respect to collection practices that would result in any material losses or material adverse changes in collections, whether or not in the Ordinary Course of Business;
(w) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of charitable contributions or pledges which in the Azur Group Entities during the Pre-Closing Period, do not aggregate exceed $1 million50,000;
(x) enter into any new line of business or exit any line of business;
(y) acquire (by merger, consolidation or acquisition of stock or assets) any business, corporation, partnership or other business organization or division thereof or collection of assets constituting all or substantially all of a business or business unit or enter into any joint venture or partnership; or
(xxvz) agree or otherwise commit in writing to do take any of the foregoingactions prohibited by this Section 5.01.
Appears in 1 contract
Samples: Merger Agreement (Proto Labs Inc)
Conduct of the Business. Azur agrees(a) The Company will, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements)Company and the Seller will cause each Subsidiary to, or as comply with the following covenants prior to the Closing, unless otherwise agreed to approved in writing by Jazz the Purchaser:
(such agreement not i) maintain its legal existence;
(ii) use all reasonable efforts to be unreasonably withheldpreserve the Business and its business organization intact, conditioned or delayed)retain its licenses, permits, authorizations, franchises and certifications, and preserve the existing contracts and goodwill of its customers, suppliers, vendors, service providers, officers, employees, independent contractors and others having business relations with it;
(xiii) each of the Azur Group Entities shall conduct its business and operations solely only in the ordinary course Ordinary Course of business and consistent with past practices and, Business (including without limitation construction of improvements to the extent consistent therewith Company Property, sales of lots, Fractional Interests and Golf Memberships, the payment of payables and capital expenditures) and in compliance in all material respects with all applicable Legal Requirements;
(iv) have in effect and subject to the restrictions set forth in this Section 5.4(a)), (y) each maintain at all times all insurance of the Azur Group Entities will kinds, in the amounts and with the insurers as is presently in effect or equivalent insurance and assist the Purchaser in arranging the insurance contemplated in Section 8.1(u);
(v) maintain its books, accounts and records in its usual, regular and ordinary manner;
(vi) confer with representatives of the Purchaser to report material operational matters and the status of ongoing operations upon reasonable advance notice by the Purchaser;
(vii) use commercially reasonable efforts to preserve obtain all Required Consents;
(viii) prepare and maintain existing relations timely file all Tax Returns required to be filed by it and goodwill pay all Taxes when due; and
(ix) use all reasonable efforts to operate in such a manner as to assure that the representations and warranties of the Company and the Seller set forth in this Agreement will be true and correct in all material respects as of the Closing Date with Governmental Authoritiesthe same force and effect as if such representations and warranties had been made on and as of the Closing Date, employeestaking into account construction of improvements to the Company Property, customerssales of lots, brokersFractional Interests and Golf Memberships, suppliers the payment of payables and other Persons with which capital expenditures, all in the Ordinary Course of Business.
(b) The Company will not, and the Company and the Seller will not permit any Subsidiary to, do any of the Azur Group Entities has significant business relations and (z) subject following prior to applicable Law as agreed Closing, unless otherwise approved in good faith writing by counsel to Jazzthe Purchaser, Azur which approval shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the followingbe unreasonably withheld:
(i) declare, accrue, set aside change its method of management or pay operations in any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entitymaterial respect;
(ii) issuesell, deliverlease, pledge, encumber, sell or authorize to sell any shares of capital stock dispose of or license any assets or properties or make any commitment to do so, other equity interests than in any Azur Group Entity, or any securities convertible into any such shares the Ordinary Course of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this AgreementBusiness;
(iii) amend incur or commit to incur any material Indebtedness or renew or refinance or commit to incur any material Indebtedness or renew or refinance or commit to renew or refinance any Outstanding Indebtedness or assume, guarantee or endorse or otherwise alter (or propose any amendment or alteration to) become responsible for the Governing Documents obligation of any Azur Group Entity other Person, or amend subject any terms of its properties or assets to any Lien (any Indebtedness approved by the prior written consent of the outstanding securities of any Azur Group EntityPurchaser, together with the Outstanding Indebtedness, is referred to herein as “Permitted Indebtedness”);
(iv) effect make any loans or become a party to any Contract relating to a Competing Transaction advances, other than (i) deposits or advances in connection with respect to each Azur Group Entity, recapitalization, reclassification construction of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entityimprovements to, or make any investment the acquisition of furniture, fixtures or equipment for, the Project(s) in any equity securities the Ordinary Course of Business, or (ii) extensions of credit to members of the golf club operated by the Company, each of (i) and (ii) in the Ordinary Course of Business and in compliance with applicable Legal Requirements or the requirements of any Material Contract and other Person, including any joint venture, or acquire the stock or all or substantially all than travel and similar advances to employees of the assets or rights Company and the Subsidiaries in the Ordinary Course of any other Person or any division of any other PersonBusiness;
(v) sellmodify, leaseamend, license, assign, transfer, abandon, convey cancel or otherwise dispose of terminate any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000Material Contract;
(vi) incur make any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than change in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into compensation paid or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employeeofficer, Independent Contractordirector, manager, employee, agent, representative, independent contractor or consultant (as shown or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus required to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar paymentbe shown on Schedule 3.21, or pay or agree to pay any bonus or similar payment (other than payment establishing compensation for new employees and independent contractors in a manner reasonably consistent with existing Company and Subsidiary practices, and bonus payments made to employees or independent contractors in the Ordinary Course of Business, or other amounts to which the Company or any Subsidiary is committed and which are expressly disclosed in this Agreement) or terminate, amend, modify or change any Benefit Plan;
(vii) promote, change the job title of, or otherwise alter in any material respect the responsibilities or duties of, any Person set forth on Schedule 3.21(c);
(viii) terminate the services of base salaryany present employee, consultant or agent except in the Ordinary Course of Business or for good cause shown, except that no Person set forth on Schedule 3.21(c) shall be terminated except for good cause shown;
(ix) except for (i) sales in the Ordinary Course of Business of lots, Fractional Interests and Golf Membership and (ii) Contracts entered into in the Ordinary Course of Business for construction of drainage, roadways, infrastructure, Dwelling Units, clubhouse and other vertical improvements (which sales and Contracts shall not require prior approval by the Purchaser), enter into any Contract with respect to which the Company or any EmployeeSubsidiary has any liability or obligation involving more than $50,000 contingent or otherwise, current or former Independent Contractorwhich may otherwise have any continuing effect after the Closing, consultant (other than in the Ordinary Course of Business, or which may place any limitation on the method of conducting or scope of the Business, provided, however, that neither the Company nor any Subsidiary shall enter into any loan, credit, guarantee or similar relationshipContract relating to Indebtedness, other than Permitted Financing;
(x) declare, make or director cause to be made or set aside any dividend, distribution, redemption, repurchase, recapitalization, reclassification, issuance, split, combination or other transaction involving the limited liability company interests, capital stock or other equity securities of the Company or any Subsidiary; or authorize the creation or issuance of any Azur Group Entityadditional limited liability company interest, capital stock or other equity securities, or any option, warrant or right to acquire any such interests, capital stock or equity securities; or split, combine or reclassify any limited liability company interest, capital stock or other equity securities;
(xi) terminate propose or adopt any employee other than for cause (in which case Azur shall first consult with Jazz), or hire amendment of any employee, in either case, whose annual base compensation exceeds or would exceed $150,000of its organizational documents;
(xii) enter into make any change in its accounting practices or forgive any loan to employeesprocedures, directors, or consultantsexcept as required by GAAP;
(xiii) enter into make any new collective bargaining agreement upward revaluation of any of its assets or, except as required by law, file or agreement with a trade unionmake any change to any material Tax practice, Tax election or any Tax Return;
(xiv) contribute any material amount to any trust change its customer pricing, rebates or discounts, other arrangement funding any Benefit Plan, except to than in the extent required by the existing terms Ordinary Course of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable LawBusiness;
(xv) (A) adopt a plan of complete acquire any material assets, properties, business or partial liquidationPerson, dissolution, merger, whether by merger or consolidation, restructuringpurchase of assets or equity securities or any other manner, recapitalization in a single transaction or a series of related transactions, other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration than improvements constructed in the Ordinary Course of payment or performance as a result of a change of control of any Azur Group EntityBusiness on the Company Property;
(xvi) renew cancel or enter into waive any Contract with rights of substantial value, or pay, discharge or settle any non-compete or exclusivity provisions that would contractually restrict or limit claim of substantial value, other than in the operations Ordinary Course of any Azur Group Entity in any material respectBusiness;
(xvii) (A) enter intomake any capital expenditures that, individually or permit any of in the assets owned or used by it to become bound by any contract that is or would constitute a Material Contractaggregate, exceed $25,000, other than Contracts specifically relating to actions falling in connection with the exceptions construction of improvements to the covenants set forth Company Property in clauses (v), (xi) or (xxiv) the Ordinary Course of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material ContractBusiness;
(xviii) enter into settle or compromise any Contract, other than in suit or claim or threatened suit or claim relating to the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year Transactions or (y) payments by make any Azur Group Entity in excess of $500,000 per annumTax election or settle or compromise any material income tax liability;
(xix) take any other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;action which could have a Material Adverse Effect; or
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingforegoing referred to in clauses (i) - (xix).
Appears in 1 contract
Samples: Securities Purchase Agreement (Cold Spring Capital Inc.)
Conduct of the Business. Azur agreesThe Corporation shall maintain primary responsibility for obtaining all regulatory approvals required to be obtained, and with the completion and filing of all reports and documents, including the Listing Statement and the Proxy Circulars, required to be completed and filed, in respect of the transactions contemplated by this Agreement. The Corporation shall convene and hold a special meeting of its shareholders for the purpose of considering the Amalgamation as soon as reasonably practicable and in connection therewith, as to itself promptly as reasonably practicable, prepare the Corporation Proxy Circular, together with any other documents required by applicable legislation in connection with the approval of the Amalgamation, which Corporation Proxy Circular shall include a recommendation of the board of directors of the Corporation that the Shareholders vote in favour of the Amalgamation, and its Subsidiaries, that, during which recommendation shall not be withdrawn or amended in any manner other than where required in connection with the Pre-Closing exercise by the board of directors of the Corporation of their fiduciary duties. During the Interim Period, except as set forth in Section 5.4 other than with the express written approval of the Azur Disclosure ScheduleAcquiror, the Corporation shall conduct the Business in the ordinary course consistent with past practice and shall use its commercially reasonable best efforts to preserve intact the organization, relationships with third parties and goodwill of the Corporation and keep available the services of the present officers, employees, agents and other personnel of the Business. Without restricting the generality of the foregoing, the Corporation will not:
(a) amend its articles or bylaws;
(b) sell, mortgage, pledge or otherwise dispose of any substantial assets or properties of the Corporation;
(c) declare, set aside or pay any management fee or dividend or make any other distribution with respect to the capital stock of the Corporation or otherwise make a distribution or payment to any Shareholder;
(d) amalgamate, merge or consolidate with or agree to amalgamate, merge or consolidate with, or purchase or agree to purchase all or substantially all of the assets of, or otherwise acquire, any corporation, partnership or other business organization or division thereof;
(e) authorize for issuance, issue, sell or deliver any additional shares of its capital stock of any class or any securities or obligations convertible into shares of its capital stock of any class or commit to doing any of the foregoing except in connection with the Private Placement and as contemplated provided for in Schedule 13.3 of the Corporation Disclosure Letter;
(f) split, as required by this Agreement combine or reclassify any shares of the Related Agreementscapital stock of any class of the Corporation or redeem or otherwise acquire, as reasonably necessary directly or indirectly, any shares of such capital stock;
(g) incur or agree to effect the Reorganization (subject incur more than $100,000 of any debt or guarantee any debt for borrowed money, including any debt to and in accordance with this Agreement and the Related Agreements)any Shareholder, or as otherwise agreed to any Affiliate or Associate of any Shareholder, except debt incurred with the Acquiror;
(h) make any loan, advance or capital contribution to or investment in writing by Jazz (such agreement not any person other than loans, advances and capital contributions to be unreasonably withheld, conditioned or delayed), (x) each of investments in joint ventures or other similar arrangements in which the Azur Group Entities shall conduct its business and operations solely Corporation has an equity interest in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers travel advances made in the ordinary course of business consistent with past practices) if by the Corporation to its employees to meet business expenses expected to be incurred by such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Dateemployees;
(xxiiii) lend money to except as provided for in Section 6.1(g), enter into any person (except agreement or contract which binds the Corporation for business expenses to its current employees in the ordinary course payments of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed more than $1 million50,000; or
(xxvj) agree or commit fail in any material respect to do comply with any of the foregoingApplicable Laws.
Appears in 1 contract
Samples: Combination Agreement
Conduct of the Business. Azur agreesExcept for matters set forth in Section 6.1 of the Company Disclosure Schedule or matters otherwise permitted or required by the terms of this Agreement or except as required by applicable Law, as from the date of this Agreement to itself the earlier of the Effective Time and the Outside Date, the Company shall use commercially reasonable efforts to conduct its and its Subsidiaries’ businesses in the ordinary course of business consistent with past practice in all material respects, that, during to keep intact their respective businesses in all material respects and to preserve their relationships in all material respects. In addition (and without limiting the Pre-Closing Periodgenerality of the foregoing), except as set forth in Section 5.4 6.1 of the Azur Company Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), expressly permitted or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan this Agreement or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing except as of required by applicable Law, from the date of this Agreement to the earlier of the Effective Time and the Outside Date, the Company shall not, and shall not permit any of their Subsidiaries to, do any of the following without the prior written consent of Purchaser:
(a) effect any amendment or adopted change in its certificate of limited partnership or entered into after formation, the date of this LLC Agreement without violation of this Section 5.4(a): (A) make or any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entityother organizational document;
(xb) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination adopt or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement effect a plan or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, restructuring, merger, consolidation, restructuring, recapitalization or other reorganization reorganization;
(c) (i) issue, sell, transfer, pledge, dispose of or suffer any Encumbrance on any limited liability company units or any other equity interests, (ii) grant any options, warrants or other rights to purchase or obtain any limited liability company units or any other equity interests, (iii) split, combine, subdivide or reclassify any limited liability company units or any other equity interests, (iv) declare, set aside or pay any non-cash dividend or make any other non-cash distribution (whether in stock, other equity interest, property or otherwise) with respect to any limited liability company units or any other equity interests or (Bv) redeem, purchase or otherwise acquire any limited liability company units or any other equity interests, including any rights, warrants or options to acquire the limited liability company units;
(d) (i) issue any note, bond or other debt security or incur or guarantee any indebtedness for borrowed money or otherwise become responsible for any indebtedness for borrowed money, (ii) cancel any debts or waive, release or compromise any claims or rights thereunder in excess of $250,000 or (iii) make any material loans, advances or capital contributions to, or investments in, any other Person;
(e) enter into or consummate any agreement transaction involving the acquisition of the business, stock, assets or exercise other properties of any discretion providing other Person;
(f) sell, lease, license, abandon, allow to lapse or otherwise dispose of any material amount of assets or property (including Intellectual Property) for acceleration consideration in excess of payment or performance $250,000;
(g) except as may be required as a result of a change of control of any Azur Group Entity;
(xvi) renew in Law or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter intoGAAP, or permit change any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures principles or practices;
(xxih) license or permit any rights to lapse in any Material Azur IP Rights;
(Ai) make or rescind any material tax election with respect to the Company or its Subsidiaries (including making an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) to be classified as an association taxable as a corporation), (ii) change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Lawperiod, (Biii) make adopt or change any Tax electionaccounting method, (Civ) file settle or amend any Tax Return or (D) enter into any closing agreement, settle compromise any Tax claim or assessment relating with respect to any of the Azur Group Entities, surrender any right to claim a refund material amount of Taxes, or (v) consent to any extension or waiver of the limitation limitations period applicable to for the assessment or collection of any material amount of Tax, (vi) file any amended material Tax claim or assessment Return, (vii) enter into any closing agreement relating to any Azur Group Entity material amount of Tax or (in each case viii) surrender any claim for a material Tax refund;
(i) except as required to comply with Company Benefit Plans or Company Benefit Arrangements existing on the date of this Agreement, (i) adopt, enter into, terminate or amend any Company Benefit Plan or Company Benefit Arrangement or any collective bargaining agreement, other than electionsamendments made in the ordinary course of business and as would not increase benefits or costs to the Company with respect to such Company Benefit Plans or Company Benefit Arrangements by more than a de minimis amount with respect to each such amendment; (ii) increase the compensation or benefits of, filingsor agree to or pay any bonus to, settlementsany director, closing agreementsofficer, extensions employee, member, service provider or waivers made consultant or modify their terms of employment or engagement, other than increases in compensation in the ordinary course of business consistent with past practicespractice with respect to employees who are below the level of Principal; (iii) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding equity compensation; (iv) grant or increase any bonus, incentive, severance, retention, change of control, equity, or performance awards or payments under any Company Benefit Plan or Company Benefit Arrangement or any agreement that would be a Company Benefit Plan or Company Benefit Arrangement if such electionentered into prior to the date hereof; (v) take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan or Company Benefit Arrangement other than in the ordinary course of business; (vi) forgive any loans to directors, adoptionofficers, changeemployees, amendmentmembers, agreement, settlement, surrender, consent service providers or other action would have the effect of increasing the Tax liability consultants of the Azur Group Entities Company or any of its Subsidiaries, or (vii) pay or vest any performance based amount or award in excess of the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing level earned based on the Closing Dateactual performance;
(xxiiij) lend money to make, authorize or enter into any person commitment with a third party for any capital expenditures in excess of $100,000 in the aggregate;
(except k) cancel, modify, reduce or terminate any insurance policy without obtaining comparable substitute insurance coverage;
(l) terminate any officers or senior employees other than for business expenses to its current cause, or hire any new employees unless (A) such hiring is in the ordinary course of business and consistent with past practicespractice, (B) or guarantee such hiring is made in consultation with Parent and (C) such hiring is of an employee below the indebtedness level of any PersonPrincipal;
(xxivm) make enter into any capital expenditurestransaction or any contract with any of its Key Employees, except officers, directors or Affiliates;
(n) institute, settle, agree to settle or compromise any Action (i) for capital expenditures thatan amount in excess of $500,000 in the aggregate, when added (ii) that would reasonably be expected to all other capital expenditures made on behalf result in material restrictions upon the business or operations of the Azur Group Entities during Company or its Subsidiaries or (iii) by agreeing to any material conduct remedy or other material equitable relief binding on the Pre-Closing Period, do not exceed $1 millionCompany or its Subsidiaries; or
(xxvo) authorize, agree or commit to do take any of the foregoingactions described in Section 6.1(a) through Section 6.1(n).
Appears in 1 contract
Samples: Merger Agreement (PJT Partners Inc.)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except Except as set forth in Section 5.4 on Schedule 5.1, hereof, each of the Azur Disclosure ScheduleCompanies shall observe each term set forth in this Section 5.1 and agrees that, as contemplated from the date hereof until the Effective Time, unless otherwise consented to by Buyer (which consent shall not be unreasonably withheld or delayed) in Schedule 1writing:
(a) The businesses of the Companies shall be conducted only in, as required by this Agreement or and the Related AgreementsCompanies shall not take any action except in, as reasonably necessary to effect the Reorganization (subject to ordinary course of the Companies' business and in accordance in all material respects with this Agreement all applicable laws, rules and regulations and the Related Agreements)Companies' past custom and practice;
(b) Each of the Companies shall not, directly or indirectly, do or permit to occur any of the following: (i)issue or sell any additional LLC Interests of, or as otherwise agreed any options, warrants, conversion privileges or rights of any kind to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed)acquire any of LLC Interests, (xii)sell, pledge, dispose of or encumber any of its material assets, except in the ordinary course of business; (iii)amend or propose to amend its Certificate of Formation or LLC Agreement; (iv)split, combine or reclassify any outstanding LLC Interests, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to LLC Interests other than the regular year-end and quarterly distributions to Members and the distribution contemplated by Section 6.5 hereof; (v)redeem, purchase or acquire or offer to acquire any LLC Interests; (vi)acquire (by merger, exchange, consolidation, acquisition of stock or assets or otherwise) each any corporation, partnership, joint venture or other business organization or division or material assets thereof; (vii)incur any indebtedness for borrowed money or issue any debt securities, except the borrowing of the Azur Group Entities shall conduct its business and operations solely working capital in the ordinary course of business and consistent with past practices andpractice; (viii)or enter into or propose to enter into, or modify or propose to modify, any agreement, arrangement or understanding with respect to any of the extent consistent therewith (and subject to the restrictions matters set forth in this Section 5.4(aSection5.1(b)), ;
(yc) each None of the Azur Group Entities will use commercially reasonable Companies shall, directly or indirectly,enter into or modify any employment, severance or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any employees of any of the Companies or any Subsidiary other than with respect to employees who earn less than $50,000 per year;
(d) Except as required by law, the Companies shall not adopt or amend any bonus, profit-sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee, officer or director of any of the Companies or any Subsidiary;
(e) The Companies shall not cancel or terminate their current insurance policies or cause any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(f) The Companies shall (i)use their best efforts to preserve intact the Companies' business organization and goodwill, keep available the services of the Companies' officers and employees as a group and maintain existing relations satisfactory relationships with suppliers, distributors, customers and goodwill others having business relationships with Governmental Authoritiesthe Companies; (ii)confer on a regular and frequent basis with representatives of Buyer to report operational matters and the general status of ongoing operations; (iii)not intentionally take any action which would render, employeesor which reasonably may be expected to render, customers, brokers, suppliers and other Persons with which any of representation or warranty made by them in this Agreement untrue at the Azur Group Entities has significant business relations Closing; and (ziv) subject cooperate with Buyer in finalizing and communicating to applicable Law as agreed in good faith by counsel to Jazzthe Companies' employees severance, Azur shall not retention and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entitytransition arrangements ;
(iig) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms None of the outstanding securities of any Azur Group Entity;
Companies shall (iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into i)implement or adopt any newchange in its accounting principles, practices or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement)methods, other than as may be required by Law;
generally accepted accounting principles, (ix) ii)change its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of federal income tax returns of the Companies for the taxable years ending December31, 1996 and 1995, except to the extent as required by the terms of any Benefit Plan changes in law or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Planregulation, (B) increase the compensation payable to iii)make or rescind any Employee, Independent Contractor, consultant (express or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically deemed election relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a)Taxes, or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle iv)settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or waive, release, relinquish or assign any material claims or material rights, including with respect controversy relating to any Azur IP Rights;Taxes.
(xxh) adopt any change, other than Except as required by IFRSapplicable law or regulation, none of the Companies shall (i) implement or adopt any change in its accounting risk management policies, procedures or practices;
(xxi) license , which, individually or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposesthe aggregate with all such other changes, except as required by applicable Lawwould be material, (Bii) make or change fail to use commercially reasonable means to avoid any Tax election, (C) file or amend any Tax Return material increase in its aggregate exposure to risk from the general United States securities markets or (Diii) enter into any closing agreementmaterially restructure or materially change its investment securities portfolio, settle any Tax claim through purchases, sales or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxesotherwise, or consent to any extension the manner in which the portfolio is classified or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingreported.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself and From the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its Subsidiaries, that, during the Pre-Closing Periodterms, except (i) as required by Law, (ii) pursuant to any COVID-19 Measures, (iii) as expressly set forth in, or required by, this Agreement (including Section 5.5, Section 5.6, Section 5.7, Section 5.8 and Section 5.10) or as set forth in Section 5.4 5.1 of the Azur Company Disclosure ScheduleLetter, (iv) as contemplated expressly set forth in Schedule 1, as required the go-forward business plan of the Company and its Subsidiaries upon agreement in writing of such plan by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement Investor and the Related Agreements), Company or (v) as otherwise agreed consented to in writing by Jazz Investor, which consent shall not be unreasonably conditioned, withheld or delayed, the Company shall, and shall cause each of its Subsidiaries to, as applicable, (such agreement a) use commercially reasonable efforts to cause [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential. the business of the Company and its Subsidiaries to be unreasonably withheld, conditioned or delayed)conducted in all material respects in the Ordinary Course of Business, (xb) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve intact the Company’s and maintain existing relations its Subsidiaries’ business operations, business relationships with Material Customers and goodwill with Governmental AuthoritiesMaterial Vendors, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (zc) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the followingpermit:
(ia) declare, accrue, set aside the Company to amend its certificate of incorporation or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entityby-laws;
(iib) the Company or any of its Subsidiaries to authorize for issuance, issue, deliver, pledge, encumber, transfer, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rightsgrant options, warrants or options rights to acquire purchase or subscribe to, or enter into any such shares of capital stock arrangement or other equity interests, except contract with respect to exercise the issuance, pledge, encumbrance, transfer, sale or grant of Azur (i) any Company Equity Interests or Subsidiary Equity Interests or (ii) any security convertible into or exchangeable or exercisable for any Company Equity Interests or Subsidiary Equity Interests, in each case other than, in the Ordinary Course of Business, (A) issuances of Options outstanding or RSUs (excluding any performance-based RSUs) to employees, officers or directors (and not including any Person employed or affiliated with Carlyle and its Affiliates) pursuant to the Incentive Plan or other employee stock option, employee stock purchase or similar equity-based plans approved by Investor and the Company’s board of directors or (B) issuances of Subsidiary Equity Interests to the Company or any of its Subsidiaries;
(c) the Company or any Subsidiary to redeem, repurchase or otherwise acquire any (i) Company Equity Interests or non-wholly owned Subsidiary Equity Interests (other than, in the Ordinary Course of Business, customary repurchases of management equity at a price no greater than fair market value) or (ii) any indebtedness for borrowed money of the Company or any Subsidiary (other than amortization payments under the Credit Facilities or repayments under the Company’s and its Subsidiaries’ revolving credit facility under its Credit Facilities);
(d) the Company to appoint or change the Company’s independent public accountants or auditors or change any significant accounting policy of the Company (other than as required by any accounting pronouncements or interpretations under GAAP issued from and after the date hereof);
(e) any change to the Company’s entity classification in effect as of the date hereof;
(f) any material alteration to the lines of business of the Company and its Subsidiaries;
(g) the Company or any of its Subsidiaries to adopt any plan of liquidation, dissolution or winding up or file any voluntary petition for bankruptcy, receivership or similar proceeding or adopt a plan of reorganization;
(h) the Company or any of its Subsidiaries to incur, create, assume or otherwise become liable for any indebtedness for borrowed money in excess of $10,000,000 (individually or in the aggregate) (other than (x) amounts drawn under the Company’s and its Subsidiaries’ revolving credit facility under its Credit Facilities up to an amount equal to amounts repaid under [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential. such revolving credit facility by the Company and its Subsidiaries after the date hereof and (y) inter-company indebtedness among or between the Company and/or its Subsidiaries);
(i) the Company or any Subsidiary to make, change or revoke any material election concerning Taxes, adopt or change any material accounting method concerning Taxes, change any Tax accounting period, amend any material Tax Return, enter into any material Tax closing agreement, settle or compromise any material Tax proceeding, fail to pay any material Tax when due (including any material estimated Tax payments), surrender any claim for a refund of a material amount of Taxes, waive or extend the statute of limitations in respect of any material amount of Taxes, or prepare any material Tax Return in a manner inconsistent in any material respect with applicable past practices;
(j) the Company or any of its Subsidiaries to enter into any contract that would restrict any equity holder of the Company (or any Affiliate of such equity holder, other the Company and its Subsidiaries) from entering into or continuing to operate any line of business;
(k) the Company or any of its Subsidiaries to enter into any Affiliate Contract, other than commercial agreements between the Company and its Subsidiaries, on the one hand, and portfolio companies of Carlyle and its Affiliates, on the other hand, entered into in the Ordinary Course of Business on an arms’ length basis;
(l) the sale, assignment, transfer, conveyance, license, lease or other disposal of any properties, rights or assets of the Company or its Subsidiaries in excess of $10,000,000, in each case other than in the Ordinary Course of Business;
(m) the license of any material Owned Intellectual Property, except for non-exclusive licenses granted to customers in the Ordinary Course of Business;
(n) abandonment or permission to lapse of any material Owned Intellectual Property (other than (i) expiration of patents at the end of their statutory term or (ii) in the Ordinary Course of Business patent or Trademark prosecution), in each case without prior consultation with Investor;
(o) the settlement or compromise of any Litigation (whether or not commenced prior to the date of this Agreement;
) (i) without prior consultation with Investor, involving the payment of, or an agreement to pay over time, in cash, notes or other property, in the aggregate, an amount in excess of $5,000,000 (in each case, (x) exclusive of costs, interest and attorneys’ fees and (y) excluding amounts actually paid by insurance), (ii) which will require Investor to satisfy any non-de minimis obligation, (iii) amend which imposes any equitable or otherwise alter (injunctive relief that, if granted, would impose material conditions on or propose restrict in any amendment material manner Investor or alteration to) any of its Affiliates or, without prior consultation with Investor, the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
Company, (iv) effect without prior consultation with Investor, alleging criminal conduct by the Company or become any of its Subsidiaries or any of their respective directors, officers or employees or (v) without prior consultation with Investor, that would reasonably be expected to be material to the Company and its Subsidiaries, taken as a party whole; [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
(p) the Company or any Subsidiary to any Contract relating to a Competing Transaction with respect to each Azur Group Entityacquire by merger, recapitalizationconsolidation, reclassification acquisition of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entityassets or otherwise, or make any investment in any equity securities of any other Personin, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securitiesPerson or business or division thereof, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually for a purchase price in excess of $500,00010,000,000;
(viq) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on upon any Transferred Assets that would prevent the substantial consummation of the assets of any Azur Group Entities other than Pre-Closing Steps in accordance with the ordinary course of business and consistent terms hereof with past practicesrespect to such Transferred Asset in connection with the Closing;
(viiir) any Leakage;
(s) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by applicable Law or the terms of any Benefit Plan existing CBA, the Company or any Contract with an Independent Contractor Subsidiary to negotiate, modify, extend, or consultant (enter into any CBA or similar relationship) recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any Azur Group Entity existing as employees of the date of this Agreement Company or adopted or entered into after the date of this Agreement its Subsidiaries, in each case without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entityprior consultation with Investor;
(xt) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, the Company or any bonus Subsidiary to implement or similar payment (announce any employee layoffs, plant closings, reductions in force, furloughs, temporary layoffs, salary or wage reductions, work schedule changes or other than payment such actions that could implicate the WARN Act, in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entityeach case without prior consultation with Investor;
(xiu) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent as required by the existing terms of such a Company Benefit Plan set forth on Schedule 2.16(a) in effect as of the date hereof, the Company or any of its Subsidiaries to (i) accelerate or commit to accelerate the funding, payment or vesting of, or materially increase or decrease the compensation or benefits payable or to become payable to any current or former officer, director or other member of senior management of the Company and its Subsidiaries, or (ii) establish, adopt, enter into, terminate or materially amend any Company Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Lawin each case without prior consultation with Investor;
(xvi) (A) adopt a plan of complete the amendment or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend modification in any material respect or terminate any termination (excluding terminations upon expiration of the term thereof in accordance with the terms thereof, so long as the Company or its applicable Subsidiary does not have the unilateral right to renew or extend the term of such Material Contract;
(xviii) enter into of any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection contract with any actual AT&T, T-Mobile (Sprint) or alleged breach of this Agreement Verizon that is a Material Contract or any Related Agreement Carrier Contract or (B) Material Contract of the commencement of any litigation for patent infringement type set forth in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigationSection 2.9(a)(vi), or waive, release, relinquish (ii) adoption or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
entering into a new contract that would have been (A) make any change in any annual accounting period a contract with AT&T, T-Mobile (Sprint) or adopt Verizon that is a Material Contract or change a method of accounting for Tax purposes, except as required by applicable Law, Carrier Contract or (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any a Material Contract of the Azur Group Entitiestype set forth in Section 2.9(a)(vi), surrender any right if adopted or entered into prior to claim a refund the date hereof, except in the case of Taxes, or consent to any extension or waiver each of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity foregoing clause (in each case other than electionsi) and clause (ii), filings, settlements, closing agreements, extensions or waivers made in the ordinary course Ordinary Course of business Business (which shall include renewals consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability terms thereof but shall not including Contracts of the Azur Group Entities type set forth in Section 2.9(a)(vi) to the extent purporting to bind direct or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf indirect equity holders of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionCompany); or
(xxvw) agree any agreement or commit commitment by the Company or its Subsidiaries to do any of the foregoing. [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
Appears in 1 contract
Samples: Framework Agreement (Twilio Inc)
Conduct of the Business. Azur agreesFrom and after the date hereof until the Closing, as Seller shall use its commercially reasonable efforts to itself cause the Company and its SubsidiariesSubsidiaries to conduct their respective businesses only in the Ordinary Course of Business. Subject to the foregoing, that, during the Pre-Closing Period, except other than (1) as set forth in Section 5.4 of the Azur Disclosure Schedule, as otherwise contemplated in Schedule 1this Agreement, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreementsincluding Section 5.2(a), or as otherwise agreed to (2) for actions approved by Purchaser in writing by Jazz (such agreement which approval shall not to be unreasonably withheld, conditioned or delayed), (x3) each of the Azur Group Entities shall conduct its business as required by applicable Law, and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions 4) as set forth in this Section 5.4(a)), (y) each 5.1 of the Azur Group Entities will use commercially reasonable efforts to preserve Seller Disclosure Schedule, from and maintain existing relations and goodwill with Governmental Authoritiesafter the date hereof, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and Seller shall cause each of the Azur Group Entities Company and its Subsidiaries not to, directly or indirectly do, or commit to do, (A) take any action that would cause any of the following:
changes, events or conditions described in Section 3.9 to occur or (B) accumulate or stockpile coal inventory in excess of an amount reasonably anticipated to be necessary to satisfy obligations under written coal supply agreements of the Company and its Subsidiaries; provided, however, that notwithstanding the foregoing the Company and its Subsidiaries may do the following solely in connection with the Conversions: (i) amend its charter or bylaws or other organizational documents; (ii) adopt a plan or agreement of liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization, or otherwise effect any such liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization; (iii) (1) issue, sell, transfer pledge, dispose of or suffer any Encumbrance on any shares of its capital stock (or other equity interests), (2) grant any options, warrants or other rights to purchase or obtain any shares of its capital stock (or other equity interests), (3) split, combine, subdivide or reclassify any shares of its capital stock (or other equity interests), (4) declare, accrue, set aside or pay any dividend or make other distribution, other than any other dividend or distribution payable in cash, with respect of to any shares of its capital stock (or other securitiesequity interests) or (5) redeem, or repurchase, redeem purchase or otherwise acquire any shares of its capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoing.
Appears in 1 contract
Conduct of the Business. Azur agreesSince December 31, as to itself and 1996, USTMAN has complied with the provisions set forth below:
(a) USTMAN has operated its Subsidiaries, that, during Business in the Pre-Closing Period, except ordinary course;
(b) Except as set forth in Section 5.4 of the Azur Disclosure ScheduleSchedule 4.31, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities neither Seller nor USTMAN has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declaregranted or agreed to grant any bonuses to any employee, accrueofficer, set aside director, representative or pay any dividend or make any other distribution in respect agent of any shares of capital stock or other securitiesUSTMAN, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issuegranted any general increase in the rates of salaries or compensation of employees, deliverofficers, pledgedirectors, encumber, sell representatives or authorize to sell any shares agents of capital stock of or other equity interests in any Azur Group Entity, USTMAN or any securities convertible into material specific increase to any such shares employee, officer, director, representative or agent of capital stock or other equity interestsUSTMAN, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend provided for any new pension, retirement or otherwise alter (other employment benefits to any employee, officer, director, representative or propose any amendment or alteration to) the Governing Documents agent of any Azur Group Entity of USTMAN or amend any terms of the outstanding securities of increase in any Azur Group Entity;
existing benefits, (iv) effect terminated or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend amended in any material respect or terminate provide for any Material Contractmaterial increase in benefits under any Seller Plan or (v) executed any employment agreement, severance arrangement, consulting arrangement, sales agency agreement, representation agreement or distribution agreement with any employee, officer, director, representative or agent of USTMAN;
(xviiic) enter USTMAN has not amended its certificate of incorporation or by-laws and neither Seller nor USTMAN has entered into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year merger or (y) payments by any Azur Group Entity in excess of $500,000 per annumconsolidation agreement involving USTMAN or its assets;
(xixd) other than Neither Seller nor USTMAN has authorized for issuance, issued, sold, delivered or agreed or commited to issue, sell or deliver (Awhether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) in connection with any actual or alleged breach capital stock of this Agreement any class or any Related Agreement other securities or (B) equity equivalents of USTMAN or amended any of the commencement terms of any litigation for patent infringement in response to any certification of non-infringement such securities or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rightsagreements;
(xxe) adopt USTMAN has not sold, assigned or disposed of any changeof its material assets or properties, other than as required by IFRStangible or intangible, in its accounting policies, procedures or practices;
(xxi) license incured or permit assumed any rights to lapse in liabilities or entered into any Material Azur IP Rights;
(A) make any change in any annual accounting period sale/leaseback or adopt or change a method of accounting for Tax purposessimilar transaction, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxesfor sales and dispositions made, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than electionsliabilities incurred, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiiif) lend money Seller has used its best efforts to any person (except for business expenses to its current i) maintain and preserve the Business, (ii) retain USTMAN's employees in the ordinary course of business and consistent (iii) maintain USTMAN's relationships with past practices) or guarantee the indebtedness of any Personcustomers, suppliers and others;
(xxivg) make USTMAN has not assumed, guaranteed, endorsed or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person or made any loans, advances or capital expenditurescontributions to or investments in any other person, except for capital expenditures that, when added to all other capital expenditures made on behalf with the exception of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millioncertain purchase orders and related cash deposits with Caldwell Systems; orand
(xxvh) agree Seller and USTMAN have not xxxxxxxnted or commit to do adopted
(i) any of change in its accounting methods or principles or the foregoingapplication thereof (including depreciation lives) or (ii) any material change in its tax methods or principles or the application thereof (including depreciation lives).
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself (a) From the date hereof until the earlier of the termination of this Agreement and its Subsidiaries, that, during the Pre-First Closing PeriodDate, except (1) as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements)5.01, or as otherwise agreed (2) if Buyer shall have consented in writing, Seller will cause the Group Companies to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its their business and operations solely in the ordinary course Ordinary Course of business and consistent with past practices andBusiness, Seller shall cause the Group Companies to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use their respective commercially reasonable efforts to maintain and preserve their business organization, relationships with their current employees and maintain existing relations independent contractors, goodwill and goodwill business relationships with Governmental Authorities, employees, customers, brokerssuppliers, suppliers creditors, lessors, distributors, licensors, partners, business associates, Governmental Entities and other Persons with which any of the Azur Group Entities has significant Companies have business relations and (z) subject to applicable Law as agreed relations. Without Buyer’s consent in good faith by counsel to Jazzwriting, Azur shall not and shall Seller will cause each of the Azur Group Entities Companies not to, directly or indirectly do, or commit to do, any of the following:
(i) declareissue, accrue, set aside sell or pay deliver any dividend of the Company’s or make any other distribution in respect of Group Company’s equity securities or issue or sell any shares of capital stock securities convertible into, or options or other securitiesrights with respect to, or repurchase, redeem warrants to purchase or otherwise acquire any shares of capital stock or other securities of, or other ownership interests inrights to subscribe for, any Azur of the Company’s or any other Group EntityCompany’s equity securities;
(ii) issuerecapitalize, deliverreclassify, pledgecombine, encumbersplit, sell subdivide or authorize to sell redeem, declare any shares of capital stock of or other equity dividend, purchase or otherwise acquire or otherwise make any change in, directly or indirectly, any Group Company’s equity interests in or make any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except change with respect to exercise of Azur Options outstanding prior to the date of this Agreementany Group Company’s capital structure;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the its Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group EntityDocuments;
(iv) effect or become a party to create any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Personnew Subsidiary;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of incur any assets, securities, rights or property of any Azur Group Entity, other than in each case Indebtedness;
(vi) (A) sales sell, assign or transfer any material portion of inventory and equipment in the ordinary course of business and consistent with past practicesits tangible assets, or (B) not individually in excess mortgage, encumber, pledge, or impose or permit to be imposed any Encumbrance upon any of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesits assets;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, mergermerger or consolidation of any of the Group Companies, consolidationor permit any Group Company to be subject to an action for liquidation, restructuringdissolution, recapitalization liquidation, bankruptcy or other reorganization insolvency;
(viii) sell, assign, transfer, license, abandon, cancel or permit to lapse any Intellectual Property, or otherwise sell, assign or license any Intellectual Property;
(Bix) enter into any contract, agreement or exercise any discretion providing for acceleration of payment or performance as arrangement that would be a result of a change of control of any Azur Group EntityMaterial Contract if entered into prior to the date hereof;
(xvix) renew terminate, cause the termination of, amend, renew, modify or enter into extend any Material Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect, or waive or release any rights or claims thereunder;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) pay, discharge or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign satisfy any material claims or liabilities, or fail to pay or otherwise satisfy (except if being contested in good faith) any material rightsaccounts payable, including with respect to any Azur IP Rightsliabilities, or obligations when due and payable;
(xxxii) adopt directly or indirectly, merge with or into, consolidate with or acquire any changeasset out of the Ordinary Course of Business of, make any capital contributions to, or investments in, or any advance or loan to, or acquire the securities of, any other than as required by IFRS, in its accounting policies, procedures or practicesPerson;
(xxixiii) license make any capital expenditures or permit any rights to lapse commitments therefor in any Material Azur IP Rightsan amount greater than $100,000 in the aggregate;
(Axiv) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except or accounting practice or policy other than as required by applicable Law, changes in Law or GAAP that become effective after the date hereof;
(B) make or change any Tax election, (C) file or amend any Tax Return or (Dxv) enter into any closing agreementtransaction with any of its directors, settle officers, independent contractors or employees;
(xvi) except as required under the terms of any Tax claim Company Employee Benefit Plan as in effect on the date hereof, (i) increase salaries, bonuses or assessment relating other compensation or remuneration and benefits payable by a Group Company to any of its employees, officers, directors or other service providers; (ii) increase the Azur benefits provided to any Person under any Company Employee Benefit Plan; (iii) hire or engage the services of any Person; or (iv) terminate or amend any Company Employee Benefit Plan or adopt any new arrangement for the benefit or welfare of any officer or employee, director or other service provider of any Group EntitiesCompany that would be a Company Employee Benefit Plan if it were in existence as of the date hereof;
(xvii) settle or compromise any Legal Proceeding;
(xviii) cancel any material third-party indebtedness owed to any Group Company;
(xix) recognize any labor union or enter into, modify, or amend any collective bargaining agreement or engage in any communications with any labor union regarding any Party’s anticipated actions on or after the First Closing with respect to such union;
(xx) prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the First Closing Date or accelerating deductions to periods ending on or before the First Closing Date), file any amended Tax Return, settle or otherwise compromise any claim relating to Taxes, enter into any closing agreement or similar agreement relating to Taxes, otherwise settle any dispute relating to Taxes, surrender any right to claim a refund of TaxesTax refund, offset or other reduction in Tax liability, or consent request any ruling or similar guidance with respect to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing DateTaxes;
(xxiiixxi) lend money to declare or pay any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) dividend on, or guarantee the indebtedness of any Person;
(xxiv) make any payment on account of, the purchase, redemption, defeasance, retirement or other acquisition of, any of its capital expendituresstock or common shares, except for capital expenditures thatas applicable, when added to all or make any other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Perioddistribution in respect thereof, do not exceed $1 millioneither directly or indirectly, whether in cash or property; or
(xxvxxii) agree agree, whether orally or commit in writing, to do any of the foregoing, or agree, whether orally or in writing, to any action or omission that would result in any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Surgalign Holdings, Inc.)
Conduct of the Business. Azur agrees(a) From the date hereof until the Closing Date, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities Company shall conduct its business and operations solely in the ordinary course of business and consistent business, (i) unless the Purchaser shall have consented in writing (which consent will not be unreasonably withheld or delayed) or (ii) as otherwise contemplated hereby; provided, however, that (x) no action by the Company with past practices and, respect to the extent consistent therewith (and subject to the restrictions set forth in matters specifically addressed by any other provision of this Section 5.4(a)6.01 shall be deemed a breach of this Section 6.01(a), unless such action would constitute a breach of one or more of such other provisions and (y) each of the Azur Group Entities will use commercially reasonable efforts Company’s failure to preserve take any action prohibited by Section 6.01(b) and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with to which any of the Azur Group Entities Purchaser has significant business relations and (z) subject refused to applicable Law as agreed in good faith by counsel to Jazz, Azur consent shall not and shall cause each be a breach of this Section 6.01(a).
(b) From the Azur Group Entities not todate hereof until the Closing Date, directly or indirectly do, or commit to do, any of the following:
except (i) declareas set forth on Schedule 6.01, accrue(ii) with respect to the exercise of options issued as of the date hereof pursuant to existing Common Stock option plans, set aside (iii) as otherwise expressly permitted by this Agreement, or pay (iv) as consented to in writing by the Purchaser (which consent will not be unreasonably withheld or delayed), the Company shall not: (A) issue, sell or deliver any dividend shares of its capital stock (other than in connection with the exercise of options or warrants outstanding as of the date hereof, provided that the Company shall provide the Purchaser with prompt written notice of any such exercise), or issue or sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any shares of its capital stock; (B) effect any recapitalization, reclassification, stock dividend, stock split or like change in its capitalization; (C) amend its articles of incorporation or bylaws; (D) make any other distribution in respect redemption or purchase of any shares of its capital stock or (other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except than with respect to exercise the repurchase of Azur Options outstanding prior shares of Common Stock from former employees of the Company pursuant to existing agreements or pursuant to the date Articles of this Agreement;
Incorporation); (iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(vE) sell, lease, license, assign, transfer, abandon, convey assign or otherwise dispose transfer any portion of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually its tangible assets in excess of $500,000;
300,000; (viF) incur make any Indebtednesscapital investment in, or any loan to, any other Person in excess of $300,000; (G) make any capital expenditures or commitments therefore in excess of $300,000; (H) make any loan to, or enter into any new or amend existing facilities relating to Indebtednessother material transaction with, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of its directors, officers, and employees; (I) grant any severance or termination pay to any officer or director in excess of $200,000 or adopt any new severance plan; (J) make any change in its accounting methods, principles or practices, except as required by concurrent changes in GAAP; (K) enter into any contract or agreement that would be included on Schedule 4.12 if such contract had been in effect as of the assets date hereof; (L) enter into any contract or agreement for the purchase of real property or to lease property; (M) cancel any Azur Group Entities debts owed to or claims held by the Company other than in the ordinary course of business and consistent with past practices;
business; (viiiN) except in the ordinary course of business and consistent with past practicesprepare, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods; or (DO) enter into any closing agreementagree, settle any Tax claim in writing or assessment relating otherwise, to take any of the Azur Group Entitiesactions described in this Section 6.01.
(c) Notwithstanding anything to the contrary set forth in this Section 6.01 or anywhere else in this Agreement, surrender in the event that any right to claim a refund of Taxes, Optionholder exercises all or consent to any extension or waiver portion of the limitation period applicable Options held by such Optionholder following the date hereof, the Company may, in its discretion, make a loan to such Optionholder in connection with any Tax claim such exercise of Options and thereafter, the Company shall deliver to Purchaser any modifications or assessment relating updates to the Disclosure Schedules necessary to reflect any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions such exercise or waivers made change in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability capitalization of the Azur Group Entities or Company for purposes of making the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees information set forth therein true, accurate and complete in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf material respects as of the Azur Group Entities during date such supplemental disclosure information is provided to Purchaser; provided that such modification does not change the Pre-Closing Period, do not exceed $1 million; or
aggregate amounts to be paid by Purchaser under this Agreement (xxv) agree understanding that the definition of Cash and Option Loan Amount may take into account the exercise price paid or commit to do any payable by such Optionholder upon exercise of the foregoingsuch Options).
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except Except as set forth in Section 5.4 5.01 of the Azur Disclosure ScheduleSchedules, as contemplated in Schedule 1, as required by this Agreement or from the Related Agreements, as reasonably necessary to effect date hereof until the Reorganization (subject to and in accordance with earlier of the termination of this Agreement and the Related AgreementsClosing Date, as Parent shall have consented in writing (with respect to Sections 5.01(f) or (g), or as otherwise agreed to in writing by Jazz (such agreement consent shall not to be unreasonably withheld, conditioned or delayed, and with respect to Section 5.01(h), (x) each such consent, or written notice of the Azur Group Entities absence of Parent’s consent, to be provided on a reasonably prompt basis following written request therefor delivered in accordance with Section 13.03 hereof) or as required by this Agreement or applicable Law, (i) the Company shall conduct its business business, and operations solely shall cause its Subsidiaries to conduct their business, in the ordinary course of business and consistent with past practices andpractice; (ii) the Company shall, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a))shall cause its Subsidiaries to, (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve intact its and maintain existing relations their businesses and goodwill its and their relationships with Governmental Authorities, employees, material customers, brokers, suppliers and others having material business dealings with it or them; and (iii) the Company shall not, and shall not permit any of its Subsidiaries to:
(a) except for issuances as may result from the exercise of Options or settlement of Restricted Stock Units that are outstanding on the date hereof or the conversion of Preferred Stock outstanding as of the date hereof in each case on their terms as of the date hereof, issue, sell, grant or deliver any of its or any of its Subsidiaries’ equity securities or issue, sell or grant any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its or any of its Subsidiaries’ equity securities;
(b) (i) redeem, repurchase or otherwise acquire, any of its or its Subsidiaries’ equity securities or effect any recapitalization, reclassification, split, reverse split combination or like change in its or any of its Subsidiaries’ capitalization or (ii) other Persons with which than as contemplated by Section 9.02(m), declare any dividends on Series A Preferred Stock or Series A-1 Preferred Stock;
(c) amend the Organizational Documents or any of the Azur Group Entities has significant Company’s Subsidiaries’ organizational documents;
(d) sell, assign or transfer any material portion of its Assets, except inventory in the ordinary course of business relations consistent with past practice and except for sales of obsolete assets or assets with de minimis value;
(ze) subject to applicable Law as agreed sell, assign, transfer or license on an exclusive basis any patents, trademarks, trade names or copyrights, except in good faith by counsel to Jazz, Azur shall not and shall cause each the ordinary course of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:business consistent with past practice;
(f) (i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible enter into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding Contract that would be a Material Contract if entered into prior to the date of this Agreement;
; (ii) except as required by this Agreement, amend, modify or terminate any Material Contract (or any Contract described in clause (i) that is entered into in compliance with this Agreement) or (iii) amend release, waive any material rights under, or otherwise alter discharge any other party of any obligation under, any Material Contract (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction described in clause (i) that is entered into in compliance with respect to each Azur Group Entitythis Agreement), recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practicespractice with respect to the category of customer Contracts described in Section 3.11(a)(vii) (for the avoidance of doubt, not including Contracts with Affiliates).
(g) (i) fail to make capital expenditures planned to be made prior to the Outside Date in the amounts set forth for capital expenditures in accordance with the Company’s budget attached as Schedule 5.01(g) (provided, that this Section 5.01(g)(i) shall be deemed to have been complied with so long as the amount of the aggregate actual capital expenditures for any given calendar quarter is at least 80% of the amount of the aggregate budgeted capital expenditures for such calendar quarter, which budgeted amount shall be pro rated for the number of days elapsed in the calendar quarter with respect to (A) the portion of the first calendar quarter ending after the date of this Agreement, from the date of this Agreement through the last day of such calendar quarter and (B) the portion of the calendar quarter in which the Closing occurs, from the first day of such quarter through the Closing Date) or (ii) make any capital expenditures or commitments therefor, except for such capital expenditures or commitments therefor that are reflected in the Company’s budget (provided, that this Section 5.01(g)(ii) shall be deemed to have been complied with so long as the amount of the actual aggregate capital expenditures for any given quarter does not exceed 120% of the amount of aggregate budgeted capital expenditures for such calendar quarter, which budgeted amount shall be pro rated for the number of days elapsed in the calendar quarter with respect to (A) the portion of the first calendar quarter ending after the date of this Agreement, from the date of this Agreement through the last day of such quarter and (B) the portion of the calendar quarter in which the Closing occurs, from the first day of such calendar quarter through the Closing Date);
(viiih) except as required by the terms of any Company Benefit Plan, or as required by applicable Law, or as set forth on Schedule 5.01(a) or Schedule 5.01(h), (i) increase the compensation or benefits payable or to become payable to, or pay or award, or commit to pay or award, any bonuses or incentive compensation to, any of its or its Subsidiaries’ current or former directors, officers, employee or individual independent contractor, (ii) grant to any such Person any increase in severance or termination pay, (iii) enter into any employment, severance or retention agreement with any such Person, (iv) establish, adopt, enter into, amend or terminate any collective bargaining agreement or Company Benefit Plan, (v) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable to any such Person, (vi) terminate the employment of any of its or its Subsidiaries’ employees having total annual cash compensation in excess of $150,000, other than for cause, including underperformance (determined consistently with past practice), or (vii) hire any employee or individual independent contractor having total annual cash compensation in excess of $150,000;
(i) settle or compromise any Action if (i) the amount payable by any Group Company in connection therewith would exceed $500,000, (ii) if such settlement would be reasonably likely to affect the post-Closing operations of the business of any Group Company or (iii) such settlement, compromise or release contemplates or involves any admission of wrongdoing or misconduct or provides for any relief or settlement other than the payment of money;
(i) incur any Debt (other than any Debt of the type described in clause (c) of the definition of Debt which is covered by clause (c) of this clause (j)) in the aggregate with a principal amount in excess of $1,500,000 in any 30 day period, (ii) issue any Debt securities or (iii) incur any Debt of the type described in clause (c) of the definition of Debt (except as set forth in Schedule 5.01(j) or other such Debt with an aggregate principal amount not in excess of $500,000 in any 30-day period for capital leases with third parties not Affiliated with Symphony Technology II-A, L.P., Cay Tel 1 L.P. or Xxxxxx Xxxxxxxx));
(k) create, incur or allow to exist any Lien on any asset, other than Permitted Liens, or create, incur or allow to exist any Lien on any Company Stock;
(l) make any material loan, advance or capital contribution to or investment in any Person other than (i) loans, advances or capital contributions to or investments in its Subsidiaries in the ordinary course of business and consistent with past practices, enter into practice or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Lawii) advances to employees for an immaterial amount of reasonable business travel and expenses in the ordinary course of business consistent with past practice;
(ixm) except to the extent required by the terms of acquire any Benefit Plan real property or any Contract with an Independent Contractor direct or consultant (or similar relationship) of indirect interest in any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entityreal property;
(xi) enter into merge or consolidate with any Contract pursuant to which other Person or acquire an amount of stock or assets of any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment other Person (other than payment in respect the capital stock of base salary)Aditi Technologies Private Limited) or effect any business combination, to any Employee, current or former Independent Contractor, consultant (recapitalization or similar relationshiptransaction (other than the Merger) or director of any Azur Group Entity;
(xiii) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), adopt or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement a plan or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Company’s Subsidiaries (Bother than the Merger);
(o) make any material change to its or its Subsidiaries’ accounting methods, policies or practices or practices with respect to the maintenance of books of account and records, except as required by GAAP or applicable Law;
(p) make, change or revoke any material Tax election, change any material Tax accounting method, file any material amended Tax Return, settle or compromise any audit or other proceeding relating to a material amount of Tax, enter into any agreement “closing agreement” within the meaning of Section 7121 of the Code (or exercise any discretion providing similar provision of state, local or foreign Law), apply for acceleration of payment or performance as request any Tax ruling, or surrender any right to claim a result of a change of control of any Azur Group Entitymaterial Tax refund;
(xviq) renew make any change in the policies of the Company or enter into any Contract Subsidiary of the Company regarding the payment of accounts payable, the collection of accounts receivable, including accelerating the receipt of amounts due with respect to any non-compete accounts receivables, or exclusivity provisions that would contractually restrict or limit lengthening the operations period for payment of any Azur Group Entity in any material respectaccounts payable;
(xviir) (A) enter intoforgive, cancel or compromise any material debt or claim, or permit waive, release or assign any right or claim of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contractvalue, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annumpractice;
(xixs) other than (A) in connection with terminate or permit to be terminated any actual or alleged breach existing insurance policies of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP RightsCompany Group;
(xxt) adopt any change, other than as required by IFRS, in its accounting policies, procedures create or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxeseliminate, or consent to increase or decrease the balance of, any extension debt between or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur among Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made Companies except in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionpractice; or
(xxvu) authorize any of, or agree or commit to do any of the foregoingforegoing actions. Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s or any of its Subsidiaries’ operations prior to the Closing to the extent in violation of applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Harman International Industries Inc /De/)
Conduct of the Business. Azur agreesDuring the period from the date hereof to the Closing Date, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement Company shall and the Related Agreements), or as otherwise agreed Stockholder shall cause the Company to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices andpractice so as to maintain the same as a going concern in compliance with all Applicable Laws and will not, to without the extent consistent therewith prior written consent of Purchaser, permit the Company to:
(and subject to the restrictions set forth in this Section 5.4(a)), (ya) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which amend any of the Azur Group Entities has significant business relations and its constitutional documents in any respect;
(zb) subject to applicable Law as agreed in good faith by counsel existing obligations with respect to Jazzthe Gates Stock Purchase Transaction, Azur shall not and shall cause each of the Azur Group Entities not toauthorize for issuance, directly issue, sell, deliver, redeem or indirectly do, repurchase or agree or commit to doissue, sell, deliver, redeem or repurchase (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any share capital of any class or any other securities or equity equivalents (including, without limitation, any of the following:stock options or stock appreciation rights);
(ic) split, combine or reclassify any of its share capital, declare, accrue, set aside or pay any dividend or other distribution (whether in cash, share capital or property or any combination thereof) in respect of its share capital, make any other actual, constructive or deemed distribution in respect of its share capital or otherwise make any shares of capital stock or other securitiespayments to stockholders in their capacity as such, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt its securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (Ad) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or of the Company (B) enter into any agreement or exercise any discretion providing for acceleration other than the sale of payment or performance as a result of a change of control of any Azur Group Entitythe Stock);
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xviie) (Ai) enter intoincur, assume or permit modify any long-term or short-term debt or issue any debt securities except for borrowings under existing lines of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than credit in the ordinary course of business and consistent with past practices and that does not require business; (xii) a term in excess of one year assume, guarantee, endorse or otherwise become liable or responsible (ywhether directly, contingently or otherwise) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) for the commencement obligations of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, person except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practicespractice; (iii) if such electionmake any loans, adoptionadvances or capital contributions to or investments in any other person; or (iv) mortgage or pledge any of its material assets, changetangible or intangible, amendment, agreement, settlement, surrender, consent or create or suffer to exist any Lien thereupon (other action would have the effect of increasing the than Permitted Liens and Tax liability of the Azur Group Entities or the Jazz Group Entities Liens for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing DateTaxes not yet due);
(xxiiif) lend money except as may be required by law, enter into, adopt, amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units) or exercise any discretion in relation to any person such arrangement or communicate to any participant in the same an intention to do the same or pay any benefits other than in accordance with the terms thereof;
(g) acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of $50,000 in the aggregate (other than in connection with outsourcing agreements entered into with customers of the Company);
(h) except for business expenses as may be required as a result of a change in law, change any accounting reference date of the Company or change any of the accounting principles or practices used by it or its practices in managing debtors and creditors;
(i) cause any right or entitlement, insurance or Contract to its current employees lapse or be varied except in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Personbusiness;
(xxivj) make any capital expenditures, except for capital expenditures thatthe hiring of personnel as set out in Schedule 7.1, when added or as otherwise provided herein, enter into any new Contract obligating the Company to all other capital expenditures made on behalf make payments thereunder in excess of the Azur Group Entities during the Pre$50,000 in any twelve-Closing Period, do not exceed $1 millionmonth period; or
(xxvk) make any substantial change in the continuation, nature or organization of the Company or take or agree in writing or commit otherwise to do take any of the foregoingactions which would make any of the representations or warranties of the Company or Stockholder contained in this Agreement untrue or incorrect in any material respect.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Herley Industries Inc /New)
Conduct of the Business. Azur agreesDuring the period from the date of this ----------------------- Agreement and continuing through the Additional Closing, the Company agrees as to itself the Company and its Subsidiaries, that, during the Pre-Closing Period, subsidiaries that (except as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (that Purchaser shall otherwise consent in writing):
4.1.1 The Company and subject to the restrictions set forth in this Section 5.4(a)), (y) each of its subsidiaries shall carry on its business in the Azur Group Entities will usual, regular and ordinary course in substantially the same manner as previously conducted and shall use commercially all reasonable efforts to preserve intact its present business organization, keep available the services of its current officers and maintain existing relations employees and goodwill preserve its relationships with Governmental Authorities, employees, customers, brokers, suppliers and other Persons others having business dealings with which it.
4.1.2 The Company shall not, nor shall it permit any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not its subsidiaries to, directly or indirectly do, or commit to do, any of the following:
: (i) declare, accrue, set aside or pay any dividend dividends on or make any other distribution distributions in respect of any shares of its capital stock (whether in cash, stock, or property or any combination thereof); (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securitiessecurities in respect of, in lieu of or repurchasein substitution for shares of its capital stock; or (iii) redeem, redeem repurchase or otherwise acquire any shares of capital stock or other its securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interestsits subsidiaries, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of its securities outstanding on the date of hereof, as contemplated by this Agreement or adopted or entered into after as contemplated by employee benefit and dividend reinvestment plans as in effect on the date hereof.
4.1.3 The Company shall not, and shall cause its subsidiaries not to, amend or propose to amend its Certificate of this Agreement without violation of this Incorporation or By-Laws or, except as contemplated by Section 5.4(a): (A) make 4.8 hereof or the Standstill Agreement, elect or appoint any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or person a director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of them who is not serving as such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date hereof.
4.1.4 The Company shall not, nor shall it permit any of this Agreementits subsidiaries to acquire or agree to acquire by merging or consolidating with, or by applicable Law;
(xv) (A) adopt purchasing a plan of complete substantial equity interest in or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any substantial portion of the assets owned of, or used by it to become bound by any contract that is or would constitute a Material Contractother manner, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement corporation, partnership, association or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement other business organization or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposesdivision thereof, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any for such transactions which involve aggregate consideration of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other less than elections, filings, settlements, closing agreements, extensions or waivers made $500,000.
4.1.5 Other than dispositions in the ordinary course of business consistent with past practices) if practice which are not material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole and dispositions of Real Property that have been approved by the Board of Directors of the Company prior to the date hereof, and except for any other such electiontransactions which involve aggregate consideration of less than $500,000, adoptionthe Company shall not, changenor shall it permit any of its subsidiaries to, amendmentsell, agreementlease, settlementencumber or otherwise dispose of, surrenderor agree to sell, consent lease (whether such lease is an operating or capital lease), encumber or otherwise dispose of, any of its assets.
4.1.6 The Company shall not authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any of its subsidiaries.
4.1.7 The Company shall not, and shall not permit any of its subsidiaries to, enter into any agreement providing for the acceleration of payment or performance or other action would have the effect consequences as a result of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingtransactions contemplated by this Agreement.
4.1.8 The Company shall not, and shall not permit any of its subsidiaries to, enter into any new lines of business or otherwise make material changes to the operation of its business.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Chart House Enterprises Inc)
Conduct of the Business. Azur agrees, as to itself KL and its Subsidiaries, each KL Shareholder covenants and agrees that, during from the Pre-date hereof through the Closing PeriodDate, unless there occurs any SHA Material Adverse Effect and except as otherwise required as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or with the Related Agreementsprior written consent of SHA, as reasonably necessary they shall, and shall use their best efforts to effect cause each KL Subsidiary to:
(a) conduct the Reorganization (subject to Business only in the ordinary course and in accordance a manner consistent with this Agreement the current practice of the Business, to preserve substantially intact the business organization of KL and each KL Subsidiary, to keep available the Related Agreements)services of the current management employees of KL and each KL Subsidiary, to preserve, for the best interest of KL and any KL Subsidiary, the current relationships of KL and each KL Subsidiary with customers and other persons with which KL and each KL Subsidiary has significant business relations and to comply with all Laws in all material aspects;
(b) not pledge, sell, transfer, dispose or otherwise encumber or grant any rights or interests to others of any kind with respect to all or any part of the KL Shares or any equity interest of any KL Subsidiary, or as enter into any discussions or negotiations with any other party to do so;
(c) not pledge, sell, lease, transfer, dispose of or otherwise agreed encumber any Assets and Properties of KL or any KL Subsidiary, other than consistent with past practices and in the ordinary course of business of KL or any concerned KL Subsidiary or enter into any discussions or negotiations with any other party to in writing by Jazz do so;
(such agreement d) not to be unreasonably withheldissue any KL Shares or increase the registered capital of any KL Subsidiary or any other class of securities, conditioned or delayed), whether debt (x) each of the Azur Group Entities shall conduct its business and operations solely other than debt incurred in the ordinary course of business and consistent with past practices andpractice) or equity, to the extent consistent therewith (and subject to the restrictions set forth of KL or any KL Subsidiary or any options therefor or any securities convertible into or exchangeable for share capital of KL or equity interests of any KL Subsidiary or enter into any agreements in this Section 5.4(a)), (y) each respect of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any ownership or control of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly such share capital or indirectly do, or commit to do, any of the following:equity interests;
(ie) declare, accrue, set aside or pay not declare any dividend or make any other distribution in respect cash, securities or otherwise on the outstanding share capital of KL or equity interests of any shares of capital stock KL Subsidiary (excluding Jilin Kelun) or other securitiesdirectly or indirectly redeem, purchase or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entityother manner whatsoever advance, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
transfer (iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment payment for goods received or services rendered in the ordinary course of business and consistent business), or distribute to any of their affiliates or otherwise withdraw cash or cash equivalents in any manner inconsistent with past established cash management practices, except to pay existing indebtedness of KL or (B) not individually in excess of $500,000any KL Subsidiary;
(vif) incur any Indebtednessnot make, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated agree to make or announce any severancegeneral wage or salary increase or, termination unless provided for on or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on before the date of this Agreement, increase the compensation payable or by applicable Law;
(xv) (A) to become payable to any management employee of KL or any KL Subsidiary or adopt a plan or increase the benefits of complete or partial liquidationany bonus, dissolutioninsurance, merger, consolidation, restructuring, recapitalization pension or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of employee benefit plan, payment or performance arrangement, except for those increases, consistent with past practices, normally occurring as the result of regularly scheduled salary reviews and increases, and except for increases directly or indirectly required as a result of a change of control of any Azur Group Entitychanges in applicable law or regulations;
(xvig) renew not to amend the Articles of Association (or enter into other organizational documents) of KL or any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respectKL Subsidiary (excluding Jilin Kelun);
(xviih) (A) enter intonot to merge or consolidate with, or permit any of acquire all or substantially all the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a)Assets and Properties of, or (B) modify in otherwise acquire any material respectbusiness operations of, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxivi) not to make any payments outside the ordinary course of business; and
(j) not make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingin accordance with prudent business and operational practices consistent with prior practice.
Appears in 1 contract
Samples: Share Purchase Agreement (Shanghai Century Acquisition Corp)
Conduct of the Business. Azur agrees, as to itself (a) From the date hereof until the earlier of the termination of this Agreement and its Subsidiaries, that, during the Pre-Closing PeriodDate, except (1) as set forth in Section 5.4 Schedule 5.01, (2) if Parent will have consented (which consent will not be unreasonably withheld, conditioned or delayed) after notice has been provided by the Company or (3) as otherwise contemplated by this Agreement, (a) the Company will (i) conduct its business and the businesses of the Azur Disclosure Scheduleother Group Companies in the Ordinary Course of Business and keep available the services of its and the other Group Companies’ officers and employees and (ii) shall, as contemplated and shall cause the Group Companies to, keep all insurance policies set forth in Schedule 13.14, as required by this Agreement or policies that are substantially similar in all material respects with the Related Agreementsterms, as reasonably necessary conditions, retentions, and limits of liability under the insurance policies set forth on Schedule 3.14, in full force and effect and not take any action (other than file bona fide claims) that would make an insurance policy void or voidable or might result in a material increase in the premium payable under an insurance policy or prejudice the ability to effect equivalent insurance in the Reorganization future; provided that, notwithstanding the foregoing or clause (subject b) of this Section 5.01, the Company may use available cash to repay any Indebtedness and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement b) without Parent’s consent (which will not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business Company will not, and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which not permit any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not its Subsidiaries to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect except upon the vesting of any shares of capital stock or other securitiesRestricted Stock, or repurchase, redeem or otherwise acquire any for issuances of replacement certificates for shares of capital stock Company Stock and except for issuance of new certificates for shares of Company Stock in connection with a transfer of Company Stock by the holder thereof, issue, sell or other deliver any of its or any of its Subsidiaries’ equity securities ofor issue or sell any securities convertible into, or other ownership interests inoptions with respect to, or warrants to purchase or rights to subscribe for, any Azur Group Entityof its or any of its Subsidiaries’ equity securities;
(ii) issueeffect any recapitalization, deliverreclassification, pledge, encumber, sell equity split or authorize to sell any shares of capital stock of or other equity interests like change in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreementits capitalization;
(iii) amend its Organizational Documents or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entityits Subsidiaries’ organizational documents;
(iv) effect make any redemption or become purchase of its or any of its Subsidiaries’ equity interests (other than up to $500,000 in repurchases of Company Stock (including any shares of Restricted Stock) from former employees of a party Group Company pursuant to existing agreements or any Contract relating to a Competing Transaction Company Employee Benefit Plan);
(v) (A) sell, assign or transfer any material portion of its tangible assets, except in the Ordinary Course of Business for (i) inventory assets and (ii) non-inventory assets having an aggregate value of less than $500,000 and except for sales of obsolete assets or assets with respect to each Azur Group Entityde minimis or no book value; or (B) mortgage, recapitalizationencumber, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entitypledge, or impose any Lien upon any of its assets, except in the Ordinary Course of Business;
(vi) sell, assign, transfer or exclusively license any material patents, trademarks, trade names or copyrights, except in the Ordinary Course of Business;
(vii) materially amend or voluntarily terminate any Material Contract other than in the Ordinary Course of Business;
(viii) make any capital investment in any equity securities of any other Person, including any joint venturein, or acquire the stock any advance or all or substantially all of the assets or rights of any other Person or any division of loan to, any other Person;
(vix) sell, lease, license, assign, transfer, abandon, convey make any material capital expenditures or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, commitments therefor other than in each case (A) sales of inventory and equipment those reflected in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing Company’s budget as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (Ahereof as set forth on Schedule 5.01(a)(ix) make any new grant or awardhereto, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase amounts not specified in such budget that do not exceed $500,000 in the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entityaggregate;
(x) enter into any Contract pursuant to which other transaction with any Azur Group Entity may become obligated to make any severanceof its directors, termination officers or similar payment, or any bonus or similar payment (other than payment in respect employees outside the Ordinary Course of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group EntityBusiness;
(xi) except in the Ordinary Course of Business or as required under the terms of any Company Employee Benefit Plan as of the date hereof, (i) materially increase salaries, severance, pension, bonuses or other compensation and benefits payable by a Group Company to any of its employees, officers, directors or other service providers; (ii) materially increase the benefits under any Company Employee Benefit Plan; (iii) terminate or materially amend any Company Employee Benefit Plan or adopt any Company Employee Benefit Plan; or (iv) hire or engage any new employee other than for cause (in which case Azur shall first consult with Jazz)or consultant, if such new employee or hire any employee, in either case, whose consultant will receive annual base compensation exceeds or would exceed in excess of $150,000;
(xii) enter into except where control over such settlement is held by the insurer under a policy of insurance set forth on Schedule 3.14, settle any Legal Proceeding if (i) the amount payable by any Group Company in connection therewith would exceed $500,000 or forgive (ii) would be reasonably likely to have a material and adverse effect on the post-Closing operations of the business of any loan to employees, directors, or consultantsGroup Company;
(xiii) enter into cancel any new collective bargaining agreement or agreement with a trade unionmaterial third-party indebtedness owed to any Group Company;
(xiv) contribute any material amount to any trust prepare or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into inconsistent with past practice or, on any closing agreementsuch Tax Return, settle take any Tax claim or assessment relating to position, make any of the Azur Group Entities, surrender any right to claim a refund of Taxeselection, or consent to adopt any extension method that is inconsistent with positions taken, elections made or waiver of the limitation period applicable to any methods used in preparing or filing similar Tax claim Returns in prior periods (including positions, elections or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action methods that would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period deferring income to periods ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity accelerating deductions to periods ending on or the Jazz Group Entities existing on before the Closing Date), settle or otherwise compromise any claim relating to Taxes, enter into any closing agreement or similar agreement relating to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes, in each case unless required by Law or GAAP;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxivxv) make any capital expendituresacquisition or consummate any merger or similar business combination or enter into any agreement for an acquisition, merger or similar business combination with any Person, in each case except for capital expenditures that, when added a Permitted Acquisition (such Permitted Acquisition which shall be subject to all other capital expenditures made on behalf the requirements of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionSection 5.12 hereof); or
(xxvxvi) agree agree, whether orally or commit in writing, to do any of the foregoing, or agree, whether orally or in writing, to any action or omission that would result in any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Hennessy Capital Acquisition Corp II)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except as set forth in Section 5.4 (a) Each of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities Acquired Companies shall conduct its business in the Ordinary Course of Business and operations solely substantially in the same manner as heretofore conducted, and shall make its best efforts to preserve intact its current business organization and relationships with customers, suppliers and others having business dealings with it.
(b) None of the Acquired Companies shall issue, sell or deliver any Stock or other class of equity securities or issue or sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any Stock or other class of equity securities.
(c) None of the Acquired Companies shall (i) amend its charter or bylaws (or equivalent documents), (ii) enter into any partnership or joint venture, (iii) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or purchase or redeem, directly or indirectly, any shares of its capital stock, or (iv) liquidate or dissolve or obligate itself to do so.
(d) None of the Acquired Companies shall incur any Indebtedness, sell any debt securities or lend money to or guarantee the Indebtedness of any person or enter into any capital lease, and shall not restructure or refinance its existing Indebtedness or capital lease, except the Company may (i) in the ordinary course of business draw on, renew, extend, or replace its existing revolving line of credit and (ii) originate a capital lease to finance the acquisition of the gantry crane listed in Exhibit D.
(e) None of the Acquired Companies shall make any change in its accounting principles, methods, records or practices followed by it or depreciation or amortization policies or rates heretofore adopted by it, and shall maintain its books, records and accounts in accordance with generally accepted accounting principles applied on a basis consistent with past practices and, to the extent consistent therewith that of prior periods.
(and subject to the restrictions set forth in this Section 5.4(a)), (yf) each None of the Azur Group Entities will use commercially reasonable efforts Acquired Companies shall sell, transfer, license, lease or otherwise dispose of, or suffer or cause the encumbrance by, any Lien upon any of its properties or assets, tangible or intangible, or any interest therein, except for sales of inventory or assets in the Ordinary Course of Business.
(g) None of the Acquired Companies shall (i) adopt or amend in any material respect any collective bargaining, bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other plan, agreement, trust, fund or arrangement for the benefit of employees (whether or not legally binding) other than to preserve and maintain existing relations and goodwill comply with Governmental Authoritiesany Law, employeesor (ii) pay, customersor make any accrual arrangement for payment of, brokersany increase in compensation, suppliers and other Persons with which or any severance or termination pay to, or enter into any employment or loan or loan guaranty agreement with, any current or former officer, director, employee, consultant or any of the Azur Group Entities has significant business relations and Acquired Companies.
(zh) subject The Acquired Companies shall be permitted to applicable Law make capital expenditures as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the followingfollows:
(i) declare, accrue, set aside or pay any dividend or make any other distribution as provided for in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group EntitySection 1.02(e)(i) and Exhibit D (for which Sellers shall be reimbursed);
(ii) issueany capital expenditures approved in writing by Buyer in advance, deliver, pledge, encumber, sell or authorize to sell any shares of in which case such capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;expenditure shall be deemed authorized by Buyer and Sellers will be reimbursed by Buyer; and
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Periodas determined by Sellers, do after giving notice to Buyer (but such expenditures will not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingbe reimbursed by Buyer).
Appears in 1 contract
Samples: Stock Purchase Agreement (Maverick Tube Corporation)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during (a) From the Pre-Closing Period, except as set forth in Section 5.4 date hereof until the earlier of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with termination of this Agreement and the Related Agreements)Closing Date, except (i) if Buyer will have consented or (ii) as otherwise agreed expressly contemplated by this Agreement, Seller will cause the Company to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely Business in the ordinary course Ordinary Course of business Business, and consistent with past practices and, Seller shall cause the Company to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use its commercially reasonable efforts to preserve intact the current business organization and ongoing operations of the Company, maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons customers with which any whom the Company has a relationship, perform in all material respects its obligations under the Material Contracts, and maintain the properties and assets of the Azur Group Entities has significant business relations Company in their current state of repair and condition (z) subject excluding normal wear and tear). Without Buyer’s consent, with respect to applicable Law as agreed in good faith by counsel to Jazzthe Company, Azur shall Seller will not, and will not and shall cause each of permit the Azur Group Entities not Company to, directly or indirectly do, or commit to do, any of the following:
(i) declareissue, accrue, set aside sell or pay deliver any dividend of the Company’s equity securities or make issue or sell any other distribution in respect of any shares of capital stock or other securitiessecurities convertible into, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities ofoptions with respect to, or other ownership interests inwarrants to purchase or rights to subscribe for, any Azur Group Entityof the Company’s equity securities;
(ii) issuerecapitalize, deliverreclassify, pledgecombine, encumbersplit, sell subdivide or authorize to sell redeem, declare any shares of capital stock of or other equity dividend, purchase or otherwise acquire or otherwise make any change in, directly or indirectly, the Company’s equity interests in or make any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except change with respect to exercise of Azur Options outstanding prior to the date of this AgreementCompany’s capital structure;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the its Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group EntityDocuments;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any redemption or purchase of its equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Personinterests;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of create any assets, securities, rights or property of any Azur Group Entity, other than in each case new Subsidiary;
(vi) (A) sales sell, assign or transfer any material portion of inventory and equipment in the ordinary course of business and consistent with past practicesits tangible assets, or (B) not individually in excess mortgage, encumber, pledge, or impose any Encumbrance upon any of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesits assets;
(vii) create incur or permit the creation of guaranty any Lien (other than a Permitted Lien) on Indebtedness, or amend and restate any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practicesexisting Indebtedness;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization merger or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration consolidation of payment or performance as a result of a change of control of any Azur Group Entitythe Company;
(xviix) renew sell, assign, transfer or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in exclusively license any material respectpatents, trademarks, trade names or copyrights;
(xviix) (A) enter intoterminate, cause the termination of, amend or permit modify any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify Contract in any material respect, amend in or waive or release any material respect rights or terminate any Material Contractclaims thereunder;
(xviiixi) pay, discharge or satisfy any material claims or liabilities, or fail to pay or otherwise satisfy (except if being contested in good faith) any material accounts payable, liabilities, or obligations when due and payable outside the Ordinary Course of Business;
(xii) directly or indirectly, merge with or into, consolidate with or acquire any material asset out of the ordinary course of, make any capital contributions to, or investments in, or any advance or loan to, or acquire the securities of, any other Person;
(xiii) enter into any Contractother transaction with any of its directors, other than in officers or employees outside the ordinary course Ordinary Course of business and Business consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annumpractice;
(xixxiv) other than (A) in connection with any actual prepare or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (D) including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), file any amended Tax Return, settle or otherwise compromise any claim relating to Taxes, enter into any closing agreementagreement or similar agreement relating to Taxes, otherwise settle any Tax claim or assessment dispute relating to any of the Azur Group EntitiesTaxes, surrender any right to claim a refund of TaxesTax refund, offset or other reduction in Tax liability, or consent request any ruling or similar guidance with respect to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionTaxes; or
(xxvxv) agree agree, whether orally or commit in writing, to do any of the foregoing, or agree, whether orally or in writing, to any action or omission that would result in any of the foregoing.
(b) From the date hereof until the earlier of the termination of this Agreement and the Closing Date, without the prior written approval of Buyer (which approval may be given or denied in Buyer’s sole discretion), the Company shall not, directly or indirectly, declare or pay any dividend on, or make any payment on account of, the purchase, redemption, defeasance, retirement or other acquisition of, any of its capital stock or common shares, as applicable, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Akerna Corp.)
Conduct of the Business. Azur agreesAfter the date hereof and prior to the Closing or earlier termination of this Agreement, as to itself and its Subsidiaries, the Seller agrees that, during the Pre-Closing Period, except as set forth in Section 5.4 6.1 of the Azur Seller Disclosure Schedule, Letter and except (i) as contemplated in Schedule 1or permitted by this Agreement, (ii) in connection with necessary repairs due to breakdown or casualty, or other actions taken in response to a business emergency or other unforeseen operational matters, (iii) as required by this Agreement applicable Law or (iv) to the Related Agreementsextent the Purchaser shall otherwise consent, as reasonably necessary to effect the Reorganization (subject to which decision regarding consent shall be made promptly and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement which consent shall not to be unreasonably withheld, conditioned or delayed), :
(xa) each the business of the Azur Group Entities Company shall conduct its business and operations solely be conducted in the ordinary and usual course of business in substantially the same manner as heretofore conducted, and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities Company will use commercially reasonable efforts endeavors to preserve its business organization intact and maintain its existing relations and goodwill with Governmental Authorities, employees, customers, brokerssuppliers, suppliers lessors, regulatory authorities, employees and other Persons with which any of business associates;
(b) the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur Company shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) amend its organizational documents other than amendments made in connection with this Agreement and amendments which are ministerial in nature or not otherwise material, (ii) split, combine or reclassify its outstanding Company Stock, (iii) declare, accrue, set aside or pay any dividend distribution payable in cash, equity or make any other distribution property in respect of the Company Stock, other than dividends paid to the Seller, or (iv) repurchase, redeem or otherwise acquire any Company Stock;
(c) the Company shall not issue, sell or dispose of any shares of capital stock, or any other equity securities in the Company, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other equity securities of, or other ownership interests in, any Azur Group Entityin the Company;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration tod) the Governing Documents of Company shall not incur any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, new indebtedness for borrowed money or make any investment in any equity securities of any other Personloans, including any joint venture, advances or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of capital contributions to any other Person;
(ve) the Company shall not make any capital expenditure except for capital expenditures made in the ordinary and usual course of its business in an amount not to exceed fifty thousand dollars ($50,000.00);
(f) the Company shall not make any acquisition of, or investment in, assets or stock of any other Person or entity, other than in the ordinary and usual course of business and not to exceed twenty-five thousand dollars ($25,000.00) singularly or fifty thousand dollars ($50,000.00) in the aggregate in any calendar year;
(g) the Company shall not sell, lease, license, assign, transfer, abandon, convey encumber or otherwise dispose of any of its assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary and usual course of business and consistent with past practicesbusiness, or in an amount not to exceed twenty-five thousand dollars ($25,000.00) singularly or fifty thousand dollars ($50,000.00) in the aggregate in any calendar year;
(viiih) except in neither the ordinary course of business and consistent with past practicesSeller nor the Company shall terminate, establish, adopt, enter into into, make any new grants or adopt any newawards of equity-based compensation or other benefits under, or amend or terminate otherwise materially modify, any existingCompany Plan in respect of current or former employees of the Company or increase the salary, Benefit Plan wage, bonus or other compensation of any directors, officers or employees of the Company, in each case except (i) for grants or awards to officers and employees under existing Company Plans (including under any trust existing performance incentive plans or other funding arrangementany retention bonus described in Section 6.1(h) of the Seller Disclosure Letter) in such amounts and on such terms as are consistent with past practice, (ii) in the normal and usual course of business (which shall include normal periodic performance reviews and related plans and the provision of individual Company Plans consistent with past practice for newly hired, appointed or promoted officers and employees), other than as required by Law;
or (ixiii) except for actions necessary to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity satisfy existing contractual obligations under Company Plans existing as of the date of this Agreement hereof or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult comply with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xvi) the Company, or the Seller on behalf of the Company, shall use their respective reasonable efforts to maintain insurance with financially responsible or nationally recognized insurers in such amounts and against such risks and losses as are consistent with the insurance maintained by or on behalf of the Company, in the ordinary and usual course of business consistent with past practice;
(Aj) the Seller shall not, nor shall it permit the Company to, change any material financial accounting method, policies, practices or election with respect to the Company, except as required by GAAP;
(k) the Company shall not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entityreorganization;
(xvil) renew the Company shall not settle or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in compromise any material respectlitigation requiring payment of an amount in excess of the reserves established therefor, or waive, release or assign any material claims, in each case other than in an amount not to exceed twenty-five thousand dollars ($25,000.00) singularly or one-hundred thousand dollars ($100,000.00) in the aggregate;
(xviim) the Company shall not (Ai) enter into, amend or permit modify any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify Contract in any material respect, amend in any material respect or (ii) terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year Contract or (yiii) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish release or assign any material rights or claims or material rights, including with respect to under any Azur IP Rights;Material Contract; and
(xxn) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of neither the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of Seller nor the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or Company shall commit to do take any actions that would violate subsections (a) through (m) of the foregoingthis Section 6.1.
Appears in 1 contract
Samples: Stock Purchase Agreement (Usec Inc)
Conduct of the Business. Azur agrees, as to itself Each of the Company and its Subsidiaries, Parent covenants and agrees that, during the Pre-Closing Period, except :
(a) Except as set forth in on Section 5.4 6.1 of the Azur Company Disclosure ScheduleLetter or Section 6.1 of the Parent Disclosure Letter, as contemplated applicable, from the date hereof through the Closing Date, each party shall conduct business only in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect ordinary course (including the Reorganization (subject to and in accordance with this Agreement payment of accounts payable and the Related Agreementscollection of accounts receivable), or as otherwise agreed and shall not enter into any material transactions outside the ordinary course of business without the prior written consent of the other party, and shall use its commercially reasonable efforts to in writing by Jazz preserve intact its business relationships with employees, clients, suppliers, contract manufacturing organizations, contract research organizations and other third parties. Without limiting the generality of the foregoing, from the date hereof through and including the Closing Date, without the other party’s prior written consent (such agreement which shall not to be unreasonably withhelddenied, conditioned conditioned, withheld or delayed), (x) the Company shall not, and shall cause its Subsidiaries not to, and (y) Parent, Merger Sub and Merger Sub II shall not, as applicable:
(i) except as contemplated by this Agreement or any Additional Agreement, amend, modify or supplement its certificate of incorporation or bylaws or other organizational or governing documents, or engage in any reorganization, reclassification, liquidation, dissolution or similar transaction;
(ii) amend, waive any provision of, terminate prior to its scheduled expiration date, or otherwise compromise in any way or relinquish any material right under, (x) with respect to the Company, any Material Contract or (y) with respect to Parent, any material agreement (in each of the Azur Group Entities shall conduct its business and operations solely case other than ministerial changes that do not have an economic impact or in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(abusiness)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) solely with respect to the Company and its Subsidiaries, modify, amend or otherwise alter (enter into any Contract or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms commitment, including for capital expenditures, that would be considered a Material Contract if in effect on of the outstanding securities date hereof, except in the ordinary course of any Azur Group Entitybusiness;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment capital expenditures in any equity securities excess of any other Person, including any joint venture, $250,000 (individually or acquire in the stock or all or substantially all aggregate) except in the ordinary course of the assets or rights of any other Person or any division of any other Personbusiness;
(v) sell, assign, transfer, lease, license, sublicense, convey, covenant not to assert, pledge, or otherwise encumber or subject to any Lien, abandon, cancel, let lapse or otherwise dispose of any of the Company’s or Parent’s, as applicable, material tangible, except pursuant to existing contracts or commitments disclosed herein or entered into in the ordinary course of business;
(vi) (A) sell, assign, transfer, lease, license, sublicense, convey, covenant not to assert, pledge, or otherwise encumber or subject to any Lien (other than pursuant to Permitted Liens), abandon, convey cancel, let lapse or otherwise dispose of any assetsmaterial Intellectual Property, securities, rights or property except granting non-exclusive licenses of any Azur Group Entity, other than in each case (A) sales of inventory and equipment Owned Intellectual Property to customers in the ordinary course of business and consistent with past practices, or ; (B) not individually in excess disclose any material Trade Secrets of $500,000;
the Company or any of its Subsidiaries to any third Person other than pursuant to a written agreement sufficiently restricting the disclosure and use thereof by such Person; or (viC) incur subject any Indebtedness, enter into any new or amend existing facilities relating of the Company Software to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesCopyleft Terms;
(vii) create pay, declare or permit the creation of promise to pay any Lien (dividends or other than a Permitted Lien) on any of the assets of any Azur Group Entities distributions with respect to its capital stock or other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any newequity securities, or amend pay, declare or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except promise to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust stockholder, shareholder or other arrangement funding any Benefit Plan, except to equityholder in its capacity as such (which for the extent required by the existing terms avoidance of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that doubt does not require (x) a term in excess include payment of one year or (y) salary, benefits, commissions and other regular and necessary customary payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election), adoptionor except as contemplated by any Additional Agreement, changeamend any term, amendment, agreement, settlement, surrender, consent right or obligation with respect to any outstanding shares of its capital stock or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Dateequity securities;
(xxiiiviii) lend money except as contemplated by this Agreement or any Additional Agreement, amend any term, right or obligation with respect to any person outstanding shares of its capital stock or other equity securities;
(ix) (A) make any loan, advance or capital contribution to any Person; (B) incur any Indebtedness, including drawings under the lines of credit, if any, other than (1) loans evidenced by promissory notes made to Parent as working capital advances as described in the Prospectus; (2) intercompany Indebtedness; or (3) any Permitted Company Financing; or (C) repay or satisfy any Indebtedness, other than the repayment of Indebtedness in accordance with the terms thereof;
(x) suffer or incur any Lien, except for Permitted Liens, on the Company’s or Parent’s, as applicable, assets;
(xi) delay, accelerate or cancel, or waive any material right with respect to, any receivables or Indebtedness owed to the Company or Parent, as applicable, or write off or make reserves against the same;
(xii) merge or consolidate or enter a similar transaction with, or acquire all or substantially all of the assets or business expenses of, any other Person; make any material investment in any Person; or be acquired by any other Person;
(xiii) form any Subsidiaries;
(xiv) terminate or allow to lapse any insurance policy protecting any of the Company’s or Parent’s assets, unless simultaneously with such termination or lapse, a replacement policy underwritten by an insurance company of nationally recognized standing having comparable deductions and providing coverage substantially equivalent to the coverage under the terminated or lapsed policy for substantially similar premiums or less is in full force and effect;
(xv) adopt any severance, retention or other employee health and welfare benefit plan or fail to continue to make timely contributions to each employee health and welfare benefit plan in accordance with the terms thereof;
(xvi) institute, settle or agree to settle any Action before any Authority, in each case in excess of $300,000 (exclusive of any amounts covered by insurance) or that imposes injunctive or other non-monetary relief on such party;
(xvii) except as required by U.S. GAAP, make any material change in its current employees accounting principles, methods or practices or write down the value of its assets;
(xviii) change its principal place of business or jurisdiction of organization;
(xix) issue, redeem or repurchase any capital stock, membership interests or other securities, or issue any securities exchangeable for or convertible into any shares of its capital stock or other securities other than (A) any redemption by Parent of Parent Class A Shares held by its public stockholder pursuant to Section 6.6; (B) in connection with any Permitted Company Financing; or (C) as otherwise contemplated by this Agreement or any Additional Agreement;
(xx) except as otherwise required by applicable Law, (A) make, change or revoke any material Tax election; (B) adopt or change (or request permission of any Taxing Authority to change) any annual Tax accounting method or period; (C) amend, modify or otherwise change any filed material Tax Return; (D) settle or compromise any claim, notice, audit, assessment or other Action in respect of material Taxes; (E) enter into any Tax allocation, Tax sharing, Tax indemnity, or other agreement relating to any Taxes (other than customary commercial Contracts entered into in the ordinary course of business not primarily related to Taxes); (F) surrender or forfeit or allow to expire any right to claim a material Tax refund; (G) file any Tax Return in a manner that is materially inconsistent with the past practices; or (H) except as contemplated by this Agreement or the Additional Agreements, knowingly take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Mergers from qualifying for the Intended Tax Treatment;
(xxi) solely with respect to the Company, enter into any transaction with or distribute or advance any assets or property to any of its Affiliates, other than the payment of salary and benefits in the ordinary course of business;
(xxii) other than as required by a Plan set forth on Section 4.17(a) of the Company Disclosure Letter or as explicitly contemplated hereunder, (A) increase or make any material change in the compensation or benefits of any employee or other individual service provider of the Company or make or grant any equity, bonus, change of control, retention, retirement, severance pay or benefits to any current or former employee, director or independent contractor, (B) accelerate the vesting or payment of any compensation or benefits of any employee or other individual service provider of the Company or amend or modify any outstanding award under any Plan, (C) terminate without “cause” any employee or other individual service provider of the Company, (D) hire or engage any new employee or other individual service provider of the Company, (E) make any loan to any present or former employee or other individual service provider of the Company, other than advancement of expenses in the ordinary course of business consistent with past practices, or (F) enter into, amend or guarantee terminate any collective bargaining agreement or other agreement with a labor union or labor organization;
(xxiii) plan, announce or implement any reduction in force, early retirement program, furlough or other voluntary or involuntary employment termination program, in each case, not in compliance with the indebtedness of any PersonWARN Act;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf solely in the case of the Azur Group Entities during Company, enter into any Affiliate Transactions;
(xxv) commit, use or otherwise expend any funds obtained through the Pre-Closing Period, do not exceed Permitted Company Financing in excess of $1 million7,000,000 (individually or in the aggregate); or
(xxvxxvi) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Business Combination Agreement (Altitude Acquisition Corp.)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during From the Pre-date hereof until the Closing PeriodDate, except (a) as set forth in Section 5.4 disclosed on the disclosure schedule delivered by the Company Parties to the Quadrangle Parties on the date of the Azur Disclosure Schedulethis Agreement, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or b) as otherwise agreed to in writing contemplated by Jazz the Restructuring Documents or (such agreement not to be unreasonably withheldc) with the prior written consent of Acquisition LLC and QMFL, conditioned or delayed)POI shall, (x) each of the Azur Group Entities and shall conduct cause its business and operations solely Subsidiaries to, manage its working capital in the ordinary course of business and consistent with past practices andpractice and to otherwise conduct its businesses in the ordinary course consistent with past practice and to use reasonable best efforts to preserve intact its business organizations, material contracts, permits and authorizations and relationships with third parties and to keep available the services of its present officers and employees. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, except (x) as disclosed on the disclosure schedule delivered by the Company Parties to the extent consistent therewith (and subject to Quadrangle Parties on the restrictions set forth in date of this Section 5.4(a))Agreement, (y) each of as otherwise contemplated by the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and Restructuring Documents or (z) subject to applicable Law as agreed in good faith by counsel to Jazzwith the prior written consent of Acquisition LLC and QMFL, Azur POI shall not not, and shall cause each of the Azur Group Entities its Subsidiaries not to, directly or indirectly do, or commit to do, any of the following:
(ia) adopt or propose any change in its certificate of incorporation or by-laws;
(b) merge or consolidate with any other Person or acquire a material amount of assets of any Person;
(c) sell, lease, license or otherwise dispose of any material assets or property except pursuant to existing contracts or commitments or otherwise in the ordinary course;
(d) declare, accrue, set aside or pay any dividend or make any other distribution in with respect of to any shares of capital stock or other securitiesCommon Stock, or repurchase, redeem or otherwise acquire any outstanding shares of capital stock Common Stock or other securities of, of POI or other ownership interests in, any Azur Group Entityits Subsidiaries (including the Senior Sub Discount Notes and POAMI’s Senior Notes or Subordinated Notes (each term as defined in the Amended and Restated Credit Agreement));
(iie) incur, assume, refinance or guarantee any material indebtedness for borrowed money;
(f) issue, deliversell, pledgetransfer, encumber, sell encumber or authorize to sell any otherwise dispose of shares of its capital stock (other than shares of its Common Stock issued and sold in accordance with the terms of options, warrants or other equity interests stock purchase rights outstanding on the date hereof or issued under employee benefit plans in effect as of the date hereof or pursuant to any Azur Group Entityof the transactions comprising the Restructuring), options, warrants, subscriptions, rights or any other securities convertible into or exercisable or exchangeable for capital stock;
(g) (i) grant any such shares of capital stock or other equity interestsincrease in compensation, benefits or any rightsseverance or termination pay to any present or former director, warrants officer, employee or options independent contractor (for the avoidance of doubt, this shall not prohibit the payment of increased compensation, benefits or any severance or termination pay (A) pursuant to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to arrangement existing on the date of this Agreement;
Agreement or (iiiB) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, to any employee or independent contractor that is not a present or former director or officer); (Bii) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into adopt any new severance, retention or amend existing facilities relating to Indebtednesschange in control arrangement, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan applicable law or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination written agreements in effect or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement policies existing on the date of this Agreement; (iii) loan or advance any money or other property to any present or former director, officer, employee or by applicable Law;
independent contractor of POI or any Subsidiary of POI, other than travel advances or similar advances made in the ordinary course consistent with past practice; (xviv) (A) adopt a establish, adopt, enter into, amend or terminate any employee benefit plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into grant any agreement equity or exercise any discretion providing equity-based awards or allow for acceleration of payment or performance as a result of a change of control the commencement of any Azur Group Entitynew offering periods under POI’s employee stock purchase plans;
(xvih) renew establish, adopt, enter into, amend or enter into any Contract with any non-compete terminate any, collective bargaining agreement (other than as may be required under the terms of an existing collective bargaining agreement, or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respectas may be required by applicable law);
(xviii) settle or compromise any suit, claim, proceeding or dispute or threatened suit, claim, proceeding or dispute if such settlement or compromise would result in (Ai) enter intoany injunctive or similar relief, or permit any (ii) an obligation to make a payment in excess of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract$100,000, other than Contracts specifically relating to actions falling with the exceptions except to the covenants set forth in clauses extent such payments are to be made with insurance proceeds (v), (xi) net of any insurance policy indemnity or (xxiv) of this Section 5.4(aretrospective premium adjustment), or (Biii) modify in any material respect, amend in restructuring of any material respect or terminate any Material Contractof its indebtedness;
(xviiij) enter into any Contract, other than negotiations with holders of the Senior Sub Discount Notes or POAMI’s Senior Notes or Subordinated Notes (each term as defined in the ordinary course of business Amended and consistent Restated Credit Agreement) with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response respect to any certification of non-infringement or invalidity payment in respect of any Approved Product contained in principal amount under any ANDA such indebtedness, any restructuring of such indebtedness or similar filing, commence or settle or compromise the amendment of any litigation, or waive, release, relinquish or assign indenture governing any material claims or material rights, including with respect to any Azur IP Rightssuch indebtedness;
(xxk) adopt make or change any material tax election, file any material amended tax returns or settle any material tax claim, audit or assessment if such election, change, other than as required by IFRSfiling or settlement would result in an obligation to make payments, in its accounting policiesthe aggregate, procedures or practicesin excess of the amount reserved by POI for such payments as of September 30, 2004;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(Al) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposesor accounting practice by POI or any Subsidiary of POI, except as required by applicable Law, (B) make law or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent comply with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing DateUnited States generally accepted accounting principles;
(xxiiim) lend money make any material capital expenditures or commitments that aggregate in excess of $100,000, excluding capital expenditures made in accordance with the projections previously provided to any person (except for business expenses to its current employees in the ordinary course of business Acquisition LLC and consistent with past practices) or guarantee the indebtedness of any PersonQMFL;
(xxivn) make hire, retain or otherwise engage any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionoutside consultant or financial advisor; or
(xxvo) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Exchange Agreement (Protection One Alarm Monitoring Inc)
Conduct of the Business. Azur agrees(a) During the Pre-Closing Period, without the prior written consent of Parent, which shall not be unreasonably withheld, conditioned or delayed, and except for the Pre-Closing Transactions, the Company shall and shall cause each of its Subsidiaries to, in all material respects,
(i) except as otherwise expressly contemplated by this Agreement or as described on Section 6.2 of the Company Disclosure Schedule, conduct their respective businesses only in the Ordinary Course of Business, (ii) use its commercially reasonable efforts to itself preserve intact its present business operations, organization and goodwill and (iii) use its Subsidiariescommercially reasonable efforts to preserve intact it present business relationships (contractual or otherwise) with all customers and suppliers, thatsubject to the Company’s good faith business judgement; and (iv) use its commercially reasonable efforts to keep available the services of its current employees and consultants.
(b) Without limiting the generality of Section 6.2(a), during the Pre-Closing Period, except as set forth in (i) to the extent described on Section 5.4 6.2 of the Azur Company Disclosure Schedule, (ii) as otherwise expressly contemplated in Schedule 1, as required by this Agreement Agreement, (iii) in the Ordinary Course of Business or the Related Agreements(iv) as consented to or approved by Parent in writing, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), which consent or as otherwise agreed to in writing by Jazz (such agreement approval shall not to be unreasonably withheld, conditioned or delayed), (x) each of neither the Azur Group Entities Company nor its Subsidiaries shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which take any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the followingfollowing actions:
(i) declareamend its Organizational Documents, accrueeffect any split, set aside or pay any combination, exchange, reclassification, recapitalization, stock dividend or make similar action with respect to its capital stock or other Equity Interests or adopt or carry out any other distribution in respect plan of complete or partial liquidation or dissolution;
(ii) except for the issuance of shares of Common Stock pursuant to the conversion of any Convertible Debenture, the grant of Options contemplated by this Agreement or the exercise of any Warrant, authorize, transfer, issue, sell or dispose of any shares of capital stock or other securitiessecurities or, except pursuant to this Agreement, grant options, warrants, calls or repurchase, redeem other rights to purchase or otherwise acquire any shares of the capital stock or other securities of, of the Company or other ownership interests in, any Azur Group EntityCompany Subsidiary;
(iiiii) issue, deliver, pledge, encumber, sell declare or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entitypay a divided on, or make any securities convertible into any such shares of capital stock or other equity interestsdistribution in respect of, the Company’s or any rights, warrants or options to acquire any such shares of Company Subsidiary’s capital stock or other equity interests, except with respect to exercise cash dividends or distributions by any of Azur Options outstanding prior the Company Subsidiaries to the date of this Agreement;
(iii) amend Company or repurchase, redeem or otherwise alter (acquire or propose cancel any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entityits capital stock;
(iv) effect acquire any real property or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entitysell, recapitalizationassign, reclassification of shareslicense, stock splittransfer, reverse split convey, lease or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities otherwise dispose of any other Personreal property or amend, including modify, extend, renew or terminate any joint venture, Lease or acquire the stock or all or substantially all of the assets or rights of entered into any other Person or any division of any other Personnew Lease;
(v) incur, assume or otherwise become liable in respect of any Indebtedness or incur or suffer any Encumbrance, other than Permitted Encumbrances, on any of its Assets or incur or become subject to any material Liability, except Indebtedness or Liabilities incurred in the Ordinary Course of Business;
(vi) enter into any transactions with any Affiliate of any Acquired Company, including the Principals and their Related Parties, other than loans or advances among the Acquired Companies;
(vii) (A) merge or consolidate with any Person; (B) acquire any material Assets, except for acquisitions of Assets in the Ordinary Course of Business; or (C) make any loan, advance or capital contribution to, or acquire any Equity Interests in, any Person (other than loans and advances to Company Associates in the Ordinary Course of Business, and other than loans or advances to another Acquired Company);
(viii) sell, lease, license, assign, transfer, abandon, convey exclusively license or otherwise dispose of any assetsof its material Assets or any Company Intellectual Property Rights, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course Ordinary Course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by LawBusiness;
(ix) except make or commit to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant capital expenditure in excess of $250,000 individually or award$1,000,000 in the aggregate, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable except for currently contemplated real estate improvements which have been disclosed to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group EntityParent;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination delay or similar payment, postpone the payment of accounts payable and other Liabilities or any bonus accelerate accounts receivable and invoicing or similar payment (other than payment in respect product delivery outside the Ordinary Course of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group EntityBusiness;
(xi) (A) materially increase any Compensation or employee benefits, whether conditionally or otherwise, provided to any Company Associate, other than in the Ordinary Course of Business or (B) adopt, amend or terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Company Plan, except to the extent required to comply with applicable Law or as requested by the existing terms Parent or as contemplated by this Agreement;
(xii) terminate any Key Executive or any other officer of such Benefit Planany Acquired Company, trust other than for “cause”, or other funding arrangementhire any new officers of any Acquired Company;
(xiii) implement or adopt any change in its accounting methods, policies, principles or procedures, except as required by Law or by IFRS;
(xiv) settle, agree to settle or waive any pending Action (A) involving potential payments to any Acquired Company or by any collective bargaining agreement, by any written employment agreement existing on Acquired Company in excess of $250,000 individually or $1,000,000 in the date of this Agreement, aggregate or by applicable Law(B) so as to admit liability or consent to non- monetary relief;
(xv) (A) adopt a plan file any amended Tax Return; change or revoke any material Tax election; change any method of complete accounting for material Tax purposes; settle any Action in respect of material Taxes; or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise Contract in respect of Taxes with any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group EntityGovernmental Authority;
(xvi) renew enter into any new line of business that is different from the Business or discontinue any line of business or any business operations;
(xvii) terminate, materially amend or waive any material rights under any Material Contract or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute be a Material Contract, Contract if entered into prior to the date hereof other than Contracts specifically relating to actions falling with customers or suppliers entered into in the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) Ordinary Course of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material ContractBusiness;
(xviii) enter into make any Contractgift or other gratuitous payment, other than immaterial gifts made in connection with business development in the ordinary course Ordinary Course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annumBusiness;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including make a payment with respect to any Azur IP Rights;Guarantee of an obligation of any Person other than an Acquired Company; or
(xx) adopt agree to do take any change, other than as required action prohibited by IFRS, in its accounting policies, procedures or practices;clauses (i) through (xx) of this Section 6.2(b).
(xxic) license Notwithstanding the foregoing or permit anything to the contrary in this Agreement, the Parties acknowledge and agree that (i) nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s operations for purposes of the HSR Act or any rights other applicable Law prior to lapse in the expiration or termination of any Material Azur IP Rights;
applicable waiting period under the HSR Act; (Aii) make any change in any annual accounting period or adopt or change a method no consent of accounting for Tax purposes, except as Parent will be required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating with respect to any of matter to the Azur Group Entities, surrender extent the Company reasonably believes that obtaining such consent may violate any right Antitrust Law or any other applicable Law and (iii) the Parties have agreed that certain Company Associates will be terminated by the applicable Acquired Company that employs such Company Associate prior to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date and all obligations and Liabilities arising as a result of such terminations, including all severance, accrued vacation, paid time off and paid sick leave, whether arising pursuant to an employment agreement or decreasing any Tax attribute of any Azur Group Entity or otherwise (collectively, the Jazz Group Entities existing on “Termination Obligations”), shall be paid by the Closing Date;
(xxiii) lend money applicable Acquired Company prior to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingClosing.
Appears in 1 contract
Samples: Merger Agreement
Conduct of the Business. Azur agrees(a) From the date hereof until the Closing Date or the earlier termination of this Agreement, as Seller shall cause the Company and its Subsidiaries to itself conduct their business in the ordinary course of business and use their commercially reasonable efforts to (i) pay the debts, Taxes and other obligations of the Business when due (other than to the extent any of the foregoing are contested by the Company or its Subsidiaries, thatas applicable, during in good faith); (ii) preserve their present business operations, organization and goodwill, (iii) preserve their present relationships with customers, suppliers and Franchisees, and (iv) perform in all material respects all of their respective obligations under all contracts and other agreements set forth on the Pre-Closing PeriodFranchise Schedule or Contracts Schedule, except (I) as set forth on the Conduct of Business Schedule or (II) for such exigent actions in response to a material circumstance arising from or with respect to the COVID-19 virus pandemic or any other pandemic which such action Seller determines is in the best interest of the Company and the Business.
(b) From the date hereof until the Closing Date or the earlier termination of this Agreement, except (I) as otherwise contemplated by this Agreement, (II) as set forth in Section 5.4 the Conduct of the Azur Disclosure Business Schedule, as contemplated in Schedule 1, (III) as required by this Agreement any applicable Law, permit or any of the Related Agreements, as reasonably necessary to effect contracts listed on the Reorganization Contracts Schedule or (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed IV) consented to in writing by Jazz (such agreement the Purchaser, which consent shall not to be unreasonably withheld, conditioned or delayed), Seller shall not, and shall not permit the Company or any of its Subsidiaries to: (xi) each issue, sell or deliver any shares of the Azur Group Entities shall conduct Company’s or any of its business Subsidiaries’ capital stock or issue or sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any shares of the Company’s or its Subsidiaries’ capital stock; (ii) effect any recapitalization, reclassification, stock dividend, stock split or like change in the Company’s or its Subsidiaries’ capitalization; (iii) amend the Company’s or its Subsidiaries’ certificate of incorporation or bylaws or equivalent organizational documents; (iv) except pursuant to any agreement existing as of the date hereof concerning the purchase of any shares of capital stock, make any redemption or purchase of any shares of the Company’s or its Subsidiaries’ capital stock; (v) (A) grant to any employee of the Company or any of its Subsidiaries any increase in compensation or benefits, except (1) for regularly scheduled pay increases, promotions, and operations solely bonuses made in the ordinary course of business and consistent with past practices andor (2) as may be required by applicable Law or the terms of any Plan; (B) modify or establish any Plan (or any arrangement that would constitute a Plan, if adopted), except (1) to the extent consistent therewith required by Law or the terms of any Plan or contract or (2) as would not be material and subject to would be in the restrictions set forth ordinary course of business; (C) terminate the employment of any employee in this Section 5.4(a))the position of vice president or above, other than for cause; or (yD) each implement any employee layoffs in violation of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split WARN Act or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
foreign law; (vvi) sell, lease, license, assign, transfer, abandon, convey transfer or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practicesof, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of grant any Lien (other than a Permitted Lien) on on, any material owned property or assets of the Company or any of its Subsidiaries, except for (A) the assets sale, lease, transfer or disposition of any Azur Group Entities other than inventory or obsolete machinery or equipment in the ordinary course of business business, (B) as to the Leased Real Property, the exercise of the Company’s or any of its Subsidiaries’ rights and consistent with past practices;
(viii) except remedies under any Lease, in the ordinary course of business, including any expiration, termination, renewal, expansions, reductions or similar rights as to such Leased Real Property, and (C) the expiration of Intellectual Property in accordance with its statutory terms; (vii) acquire any business and consistent with past practicesor Person, enter into by merger or adopt any newconsolidation, purchase of assets or equity interests, or amend by any other manner, in a single transaction or terminate a series of related transactions; (viii) make any existing, Benefit Plan (including material change in any trust method of accounting or other funding arrangement)accounting practice or policy used by the Company and its Subsidiaries in the preparation of the Financial Statements, other than as required by such changes that are consistent with applicable Law;
, GAAP or past practice; or (ix) except authorize, or commit or agree to the extent required by the terms of take any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of action described in this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary7.01(b), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoing.
Appears in 1 contract
Conduct of the Business. Azur agreesThe Sellers shall conduct their business and cause to be conducted the business of Vapor Zone Franchising in the Ordinary Course of Business consistent with past practice and shall use commercially reasonable efforts to keep available the services of the Companies’ present employees and salespersons and best efforts to preserve the goodwill, as to itself reputation and its Subsidiariespresent relationships of the Companies with suppliers, thatcustomers, during licensors and others having business relations with the Pre-Closing PeriodCompanies. Without limiting the generality of the foregoing, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in on Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), 4.1 or as otherwise agreed consented to in writing by Jazz Buyer, from the date hereof through the Closing, the Companies, and Owners shall cause the Companies to (such and the Owners with respect to Section 4.1.11 shall):
4.1.1 maintain their books and records in accordance with good business practice;
4.1.2 pay expenses and payables, continue to make and commit to make capital expenditures, xxxx customers, collect receivables, purchase inventory and replace inoperable, worn out or obsolete assets with assets of comparable quality, in each case in the Ordinary Course of Business;
4.1.3 comply in all material respects with all Laws applicable to the Companies and to the conduct of their respective business and perform in all material respects all their respective obligations without any material default;
4.1.4 not (i) increase the base compensation of, or enter into any new bonus or incentive agreement not to be unreasonably withheldor arrangement with, conditioned or delayed)any of their employees, (xii) each pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such employee, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, (iv) amend or enter into a new Employee Plan (except as required by law) or amend or enter into a new collective bargaining agreement, (v) make or agree to make any bonus or profit sharing payments to any employee or (vi) implement any employee layoffs that could implicate the WARN Act;
4.1.5 maintain the Real Property, including all of the Azur Group Entities shall conduct its business and operations solely Facilities thereon, in materially the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each same condition as of the Azur Group Entities will use commercially reasonable efforts to preserve date of this Agreement, ordinary wear and maintain existing relations tear excepted, and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which shall not demolish or remove any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly doexisting Facilities, or commit to do, erect new improvements on the Real Property or any portion thereof; no Company will cause or permit any of the following:
(i) declareReal Property Leases to be amended, accruemodified, set aside extended, renewed or pay terminated, nor shall any dividend Company enter into any new lease, sublease, license or make any other distribution in respect agreement for the use or occupancy of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entityreal property;
4.1.6 not undertake any action or fail to take any action that could be reasonably expected to result in the loss, lapse or abandonment of any material right to material Intellectual Property;
4.1.7 not settle or compromise any litigation (ii) issue, deliver, pledge, encumber, sell whether or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding not commenced prior to the date of this Agreement);
4.1.8 not (iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (Bi) enter into any agreement or exercise transaction that if entered into prior to the date hereof would be required to be set forth on Schedule 2.8 attached hereto, including, without limitation, any discretion providing for acceleration of payment transaction involving any merger, consolidation, joint venture, partial or performance as complete liquidation or dissolution, reorganization, recapitalization, restructuring, or a result of a change of control purchase, sale, lease, license, assignment, transfer or other acquisition or disposition of any Azur Group Entity;
(xvi) renew assets or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a)capital stock, or (Bii) modify in any material respectamend or modify, amend in any material respect renew or terminate any Material Contractagreement set forth on Schedule 2.19 attached hereto;
(xviii) enter into 4.1.9 not undertake any Contractaction or fail to take any action that if taken or failed to be taken prior to the date hereof would be required, other than or could have reasonably resulted in an event that would be required, to be set forth on Schedule 2.8 attached hereto;
4.1.10 maintain the Acquired Assets in a commercially reasonable manner and in the ordinary course Ordinary Course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annumBusiness;
(xix) other than (A) in connection 4.1.11 comply with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any provisions of the Azur Group EntitiesConfidentiality Agreement; and
4.1.12 not agree, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do agree, to take any of the foregoingaction not permitted to be taken pursuant to this Section 4.1.
Appears in 1 contract
Conduct of the Business. Azur agrees, (a) Except as to itself and its Subsidiaries, thatotherwise expressly contemplated by this Agreement, during the Pre-period from the date hereof to the Closing PeriodDate, the Members shall cause Seller to, and Seller shall conduct the Business and its operations in the ordinary course, consistent with past practice, and (i) use reasonable best efforts to maintain its assets and properties and to preserve its current relationships with customers, suppliers and others having business dealings with it, (ii) use reasonable best efforts to perform and comply with its Material Contracts and to comply with applicable Laws, (iii) maintain its Books and Records in the usual, regular and ordinary manner, on a basis consistent with past practice, and (iv) use reasonable best efforts to preserve the goodwill and ongoing operations of the Business.
(b) Without limiting the generality of the foregoing, except as set forth in Section 5.4 of the Azur Disclosure Scheduleotherwise expressly contemplated by this Agreement, as contemplated in Schedule 1, as required by this Agreement Law or with the Related Agreementsconsent of Buyer, as reasonably necessary to effect during the Reorganization (subject to and in accordance with this Agreement and period from the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, date hereof to the extent consistent therewith (and subject to Closing Date, the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and Members shall cause each of the Azur Group Entities Seller not to, directly or indirectly do, or commit to do, any of the followingand Seller shall not:
(i) declare, accrue, set aside modify or pay amend any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entitythe Organizational Documents;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell the issuance of, any shares Equity Securities of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this AgreementSeller;
(iii) amend split, combine, redeem or reclassify, or purchase or otherwise alter (or propose acquire any amendment or alteration to) the Governing Documents Equity Securities of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group EntitySeller, as applicable;
(iv) effect declare or become a party to pay any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, non-cash dividend or make any investment non-cash distribution in any equity securities respect of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Personits Equity Securities;
(v) sell, lease, license, assign, transfer, abandon, convey incur or otherwise dispose of suffer to exist any assets, securities, rights or property of any Azur Group Entity, other than in each case Indebtedness except (Ax) sales of inventory and equipment for working capital borrowings incurred in the ordinary course of business and consistent with past practicespractice, or (By) not individually as listed in excess Section 6.1(b)(v) of $500,000the Disclosure Schedule;
(vi) incur amend, renew, terminate or waive any Indebtedness, enter into Material Contract or any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesprovision thereof;
(vii) create enter into any new Contract that would have been a Material Contract if it had existed on the date hereof;
(viii) enter into any Contract that purports to limit, curtail or permit restrict the creation Business, or the kinds of businesses in which it or its existing or future Affiliates may conduct, or the Persons with whom it or its existing or future Affiliates can compete or to whom it or its existing or future Affiliates can sell products or deliver services, or the acquisition of any Lien business;
(other than ix) acquire (x) by merging or consolidating with, or by purchasing a Permitted Lien) on any substantial equity interest in or substantial portion of the assets of, or by any other manner, any Person or (y) any assets that are material, individually or in the aggregate, except purchases of any Azur Group Entities other than inventory and fixed assets in the ordinary course of business and consistent with past practicespractice;
(viiix) except divest, sell, transfer, lease, license, mortgage, pledge or otherwise dispose of, or encumber any asset, other than the sales of products or services in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entitypractice;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or material reorganization;
(Bxii) enter into or adopt any agreement employee benefit plan, agreement, policy or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entityprogram;
(xvixiii) renew (a) hire any employees or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit new Personnel, (b) terminate the operations services of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, Personnel other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a)for cause, or (Bc) modify make any changes in any material respectwages, amend in any material respect salary or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including compensation with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRSPersonnel except, in its accounting policieseach case, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as the extent required by applicable Law, ;
(Bxiv) make or change any Tax election, (C) file change an annual accounting period, adopt or amend change any Tax Return or (D) accounting method, file any amended Tax Return, enter into any closing agreementagreement with respect to Taxes, settle any Tax claim or Tax assessment relating to any of the Azur Group EntitiesBusiness, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Business, or take any Azur Group Entity other similar action relating to the filing of any Tax Return or the payment of any Tax;
(in each case other than electionsxv) fail to file any Tax Return or make any Tax payment, filingsincluding any estimated Tax payment, settlements, closing agreements, extensions that would be filed or waivers made in the ordinary course of business consistent with past practicespractice or required by Law;
(xvi) if such electionchange its accounting policies or procedures except to the extent required to conform with GAAP;
(xvii) change its fiscal year;
(xviii) settle or compromise any pending or threatened Action;
(xix) make any capital expenditures except to the extent made in connection with the design, adoptiondevelopment, changeor permitting of, amendmentor otherwise related to, agreement, settlement, surrender, consent the Additional Wxxxx;
(xx) waive or other action would have fail to enforce any rights under the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute confidentiality provisions of any Azur Group Entity Contracts entered into with respect to the Business;
(xxi) fail to pay its Liabilities when due or perform its material obligations when due, in each case in the Jazz Group Entities existing on ordinary course and in a manner consistent with past practice;
(xxii) take any action or omit to take any action which would cause any representation or warranty made by the Closing DateMembers or Seller in this Agreement or any Ancillary Document to be or become untrue in any material respect (disregarding for these purposes any qualifications as to “materiality” or “material adverse effect” (or any correlative term contained therein);
(xxiii) lend money to sell, transfer, contribute, pledge, distribute or otherwise dispose of or incur any person (except for business expenses to its current employees Encumbrance on any Equity Securities in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;Seller; or
(xxiv) make any capital expendituresauthorize, except for capital expenditures thatagree, when added resolve or consent to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Quality Distribution Inc)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during From the Pre-date of this Agreement until the Closing Period(or until the earlier termination of this Agreement in accordance with Section 7.01), except as expressly required by applicable Law, Governmental Orders or Self-Regulatory Organization Authorizations, as set forth in Section 5.4 of the Azur Disclosure Scheduleon Schedule 4.01, as specifically contemplated in Schedule 1, as by or required by to implement this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed waived or consented to in writing by Jazz Purchaser (such agreement consent not to be unreasonably withheld, conditioned or delayed), Parent shall cause the Acquired Companies to:
(xa) each of the Azur Group Entities shall conduct its business and operations solely (i) carry on their respective businesses in all material respects in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a))practice, (yii) each of the Azur Group Entities will use commercially reasonable efforts to preserve intact the goodwill of their respective businesses and maintain existing relations and goodwill the relationships of the Acquired Companies with Governmental Authoritiestheir customers, suppliers, employees, customers, brokers, suppliers independent contractors and other Persons with which any of the Azur Group Entities has significant business relations registered representatives and (ziii) subject keep in full force and effect all material insurance coverages maintained by any Acquired Company, other than changes to applicable Law as agreed such coverages made in good faith by counsel to Jazzthe ordinary course of business;
(b) not amend the Organizational Documents of any Acquired Company or effect any recapitalization, Azur shall reorganization, liquidation or dissolution of any Acquired Company;
(c) not and shall cause each authorize, issue, sell or otherwise dispose of the Azur Group Entities any Equity Securities of any Acquired Company;
(d) not to, directly or indirectly do, or commit to do, any of the following:
(i) mortgage, pledge or subject to any Encumbrances, other than Permitted Encumbrances, any portion of the assets of any Acquired Company or (ii) incur or assume any Indebtedness or issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of any Acquired Company, other than borrowings listed on Schedule 4.01(d) of the Disclosure Schedules;
(e) not declare, accrue, set aside or pay any dividend or make any other distribution (other than dividends or other distributions payable solely in cash; provided that, immediately following any such dividend or distribution, the Acquired Companies’ consolidated Net Working Capital shall not be less than $250,000) in respect of any shares of the capital stock or other securities, or repurchase, redeem or otherwise acquire Equity Securities of any shares of capital stock or other securities of, or other ownership interests in, any Azur Group EntityAcquired Company;
(iif) issue, deliver, pledge, encumber, sell not commence or authorize to sell continue any shares of capital stock of or other equity interests in any Azur Group Entityacquisition by, or any securities convertible into merger, dissolution or winding-up of, any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this AgreementAcquired Company;
(iiig) amend not make any change in accounting methods, principles or otherwise alter practices, except as may be required by GAAP or applicable Law;
(h) not: (1) establish or propose adopt any amendment or alteration to) the Governing Documents of any Azur Group Entity new employee benefit plan or amend any terms of the outstanding securities of existing Plan in any Azur Group Entity;
respect, except for changes as may be required by applicable Law or (iv2) effect increase any compensation to, or become a party to enter into or amend any Contract relating to a Competing Transaction with respect to each Azur Group Entityemployment, recapitalizationconsulting, reclassification of sharesseverance, stock split, reverse split termination or similar transaction with respect to each Azur Group Entityagreement with, any director, consultant or make any investment in any equity securities of any other Personexecutive officer, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment except for normal compensation increases in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of under any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing agreement in effect as of the date of this Agreement or adopted or entered into after Agreement, which increases, in the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or awardaggregate, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entityshall not exceed $250,000;
(xi) enter into not acquire any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entityreal property;
(xij) terminate not purchase any employee other than for cause (assets that, individually, have a purchase price in which case Azur shall first consult with Jazz), or hire any employeeexcess of $250,000 or, in either casethe aggregate, whose annual base compensation exceeds or would exceed have a purchase price in excess of $150,0002,500,000;
(xiik) enter into or forgive any loan to employees, directors, or consultants;
not: (xiii1) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control dispose of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contractassets, other than in the ordinary course of business and consistent with past practices and that does not require practice; (x2) a term write off, forgive, waive or otherwise cancel, in excess of one year whole or in part, any accounts receivable (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual intercompany receivables), which, individually or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filingaggregate, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposesare material, except as required by GAAP or applicable Law; (3) write off, forgive, waive or otherwise cancel, in whole or in part, any other Liabilities, which, individually or in the aggregate, are material (B) make other than intercompany Liabilities), except as required by GAAP or change any Tax election, (C) file or amend any Tax Return applicable Law or (D4) acquire any asset or property other than in the ordinary course of business;
(l) not: (1) enter into any closing agreement, settle any Tax claim or assessment relating to any agreement that would constitute a Disclosed Contract if it were in existence as of the Azur Group Entities, surrender any right to claim a refund date of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case this Agreement other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practicespractice, (2) amend, terminate or modify any Disclosed Contract except as determined by the relevant Acquired Company in its reasonable business judgment to be in the best interests of such Acquired Company and its business, (3) enter into or extend the term or scope of any Contract that purports to restrict any Acquired Company, or any existing or future Subsidiary of such Acquired Company, from engaging in any line of business or in any geographic area or (4) enter into any Contract that would constitute a Disclosed Contract if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability it were in existence as of the Azur Group Entities date of this Agreement that would be breached in any material respect by, or require the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute consent of any Azur Group Entity counterparty thereto in order to continue in full force in all material respects following, consummation of the transactions contemplated hereby; and
(m) not settle or compromise any litigation or proceeding where any Acquired Company would be obligated to make payment(s) in excess of $250,000 in the Jazz Group Entities existing on aggregate. Notwithstanding anything set forth in this Agreement, nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct the operations of any Acquired Company prior to the Closing Date;
(xxiii) lend money . Prior to any person (except for business expenses to its current employees in the ordinary course of business and Closing Date, Parent shall exercise, consistent with past practices) or guarantee the indebtedness terms and conditions of any Person;
(xxiv) make any capital expendituresthis Agreement, except for capital expenditures that, when added to all other capital expenditures made on behalf of control and supervision over the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingAcquired Companies and their respective business operations.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ladenburg Thalmann Financial Services Inc)
Conduct of the Business. Azur agrees, as to itself (a) The Company covenants and its Subsidiaries, that, during agrees that between the Pre-Closing Period, except as set forth in Section 5.4 date of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as Purchase Date unless Buyer shall otherwise agreed to agree in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed)writing, (xi) each the business of the Azur Group Entities Company and its Subsidiaries shall conduct be conducted only in, and the Company and its business and operations solely in Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a))prior practice, (yii) each of the Azur Group Entities will Company and its Subsidiaries shall use commercially reasonable efforts to preserve intact their business organizations, to keep available the services of their current officers and maintain existing relations employees and goodwill to preserve the current relationships of the Company and its Subsidiaries with Governmental Authorities, employees, customers, brokers, suppliers and other Persons persons with which the Company or its Subsidiaries has business relations, and (iii) the Company and its Subsidiaries will comply with all applicable Laws and regulations wherever its business is conducted, including, without limitation, the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Act.
(b) The Company covenants and agrees that between the date of this Agreement and the Purchase Date the Company shall not, nor shall the Company permit any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not its Subsidiaries to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside declare or pay any dividend dividends on or make any other distribution distributions (whether in cash, stock or property) in respect of any shares of its capital stock, except for dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securitiessecurities in respect of, in lieu of or repurchase, redeem in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
stock; (iiiv) issue, deliverdeliver or sell, pledge, encumber, sell or authorize to sell or propose the issuance, delivery or sale of, any shares of its capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of its capital stock or other equity interestsstock, or any rights, warrants or options to acquire any such shares or convertible securities or any stock appreciation rights, phantom stock plans or stock equivalents, other than the issuance of capital stock or other equity interests, except with respect to Ordinary Shares upon (x) the exercise of Azur Company Options outstanding prior to as of the date of this Agreement;
, and (iiiy) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents exercise of any Azur Group Entity or amend any terms of the warrants outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted (v) take any action that would, or entered into after could reasonably be expected to, result in any of the conditions set forth in Article VI not being satisfied.
(c) The Company covenants and agrees that between the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or awardand the Purchase Date the Company shall not, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase nor shall the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or Company permit any of the assets owned its Subsidiaries to, (i) amend its Articles of Association or used by it to become bound by other equivalent organizational documents; (ii) create, assume or incur any contract that is indebtedness for borrowed money or would constitute a Material Contractguaranty any such indebtedness of another person, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than that incurred in the ordinary course of business and consistent with past practices and that does practice in an aggregate amount not require to exceed $5,000,000; (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(Aiii) make any change in any annual accounting period loans or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating advances to any other person other than loans or advances between any Subsidiaries of the Azur Group Entities, surrender Company or between the Company and any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity its Subsidiaries (in each case and other than elections, filings, settlements, closing agreements, extensions loans or waivers advances less than $5,000,000 in the aggregate made in the ordinary course of business consistent with past practicespractice); (iv) if such electionmortgage or pledge any of its assets or properties; (v) subject to Section 4.5(b), adoptionmerge or consolidate with any other entity in any transaction, changeor sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $500,000 or greater; (vi) change its accounting policies, amendmentprocedures or systems of internal controls except as required by US or UK GAAP; (vii) make any change in employment terms for any of its directors or officers; (viii) alter, agreementamend or create any obligations with respect to compensation, settlementseverance, surrenderbenefits, consent change of control payments or any other action would have the effect of increasing the Tax liability payments to employees, directors or affiliates of the Azur Group Entities Company or its Subsidiaries or enter into any new, or amend any existing, employment agreements, other than changes in compensation effected in the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute ordinary course of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current consistent with past practice and other than new employees hired in the ordinary course of business and whose annual compensation does not exceed $200,000, (ix) make any change to the Company Plans; (x) amend or cancel or agree to the amendment or cancellation of any Material Contract; (xi) pay, loan or advance (other than the payment of compensation, directors' fees or reimbursement of expenses in the ordinary course of business) any amount to, or sell, transfer or lease any properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement with, any of its officers or directors or any "AFFILIATE" or "ASSOCIATE" of any of its officers or directors; (xii) form or commence the operations of any business or any corporation, partnership, joint venture, business association or other business organization or division thereof; (xiii) make any material Tax election (other than in the ordinary course of business consistent with past practicespractice) or guarantee settle or compensate any tax liability involving amounts in excess of $500,000 in the indebtedness aggregate; or (xiv) except as provided in Section 4.6, pay, discharge, settle or satisfy any claims litigation, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise) involving amounts in excess of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of $500,000 in the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingaggregate.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself and From the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its Subsidiaries, that, during the Pre-Closing Periodterms, except as expressly contemplated or permitted by this Agreement or the Ancillary Agreements or the Restructuring Agreements or as set forth in Section 5.4 2.8 or Section 4.1 of the Azur Seller Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement Letter or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), otherwise requested or as otherwise agreed consented to in writing by Jazz (such agreement Buyer, which consent shall not to be unreasonably withheldconditioned, conditioned withheld or delayed), (x) each of the Azur Group Entities Seller shall conduct and shall cause its business Affiliates and operations solely the Transferred Entities to conduct the Business in all material respects in the ordinary course consistent with past practice and Seller shall not, and shall cause its Affiliates and the Transferred Entities not to:
(a) amend its certificate of incorporation or by-laws (or other comparable organizational documents);
(b) adopt any Benefit Plan or enter into, terminate or materially amend any Benefit Plan except in the ordinary course of business and consistent with past practices andpractice or as required pursuant to the terms of the applicable plan or agreement or applicable Law;
(c) (i) issue, sell or grant options, warrants or rights to purchase or subscribe to, enter into any arrangement or contract with respect to the issuance or sale of, pledge or encumber any Transferred Entity Securities other than to the extent consistent therewith required under the Credit Facilities; (and subject to ii) change the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly authorized or indirectly doissued Transferred Entity Securities, or commit to dootherwise reclassify, combine, split, subdivide or redeem, any of the following:
Transferred Entity Securities; or (iiii) declare, accrue, set aside or pay any dividend or make other distribution, other than the payment of cash dividends or distributions of cash by any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group EntityTransferred Entity prior to Closing;
(d) make any material change to the accounting policies or practices presently used by the Transferred Entities, except as required by GAAP or applicable Law;
(e) effect any merger, consolidation recapitalization, reclassification, stock split or like change in its capitalization;
(f) (i) amend or modify in any material respect, intentionally waive or intentionally release any material rights under, or terminate any Material Contract; (ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible enter into any such shares agreement that would be a Material Contract (including, for the avoidance of capital stock doubt, any agreement amending or other equity interestsreplacing the Collective Bargaining Agreement between Xxxxx Manufacturing, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
L.P. and UAW and its affiliated Local Union No. 646); (iii) amend any Affiliate Agreement in a manner adverse to the Business or otherwise alter enter into any new Affiliate Agreement; (iv) change any payment or propose collection practices with respect to payables or receivables of the Business (including accelerating the collection of or discounting any amendment material accounts receivable, or alteration to) delaying the Governing Documents payment of any Azur Group Entity material accounts payable); (v) defer any material expenses; or amend any terms (vi) fail to continue to order or purchase raw materials and other supplies, each except in the ordinary course of the outstanding securities business consistent with past practice, as required by applicable Law or as otherwise expressly permitted pursuant to another clause of any Azur Group Entitythis Section 4.1;
(ivg) effect incur, create, assume, guarantee or otherwise become a party liable for any Indebtedness in excess of $1,000,000 in the aggregate, other than (i) replacements of local working capital facilities in amounts that do not exceed the amounts of such facilities on the date hereof, (ii) replacement of letters of credit in amounts that do not exceed the amounts of such facilities on the date hereof or (iii) any Indebtedness that will be repaid and/or as to which the Transferred Entities shall be released from obligations thereunder pursuant to Section 1.2(c), or permit or allow the Owned Real Property or any assets of the Business or the Transferred Entities to be subjected to any Contract relating to a Competing Transaction Lien, other than Permitted Liens;
(h) other than in the ordinary course of business consistent with respect to each Azur Group Entitypast practices, recapitalizationmake any loans, reclassification of shares, stock split, reverse split advances or similar transaction with respect to each Azur Group Entitycapital contributions to, or make any investment in any equity securities of any other Personinvestments in, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(vi) sell, lease, license, assign, transfer, abandon, convey make any capital expenditures or otherwise dispose of any assets, securities, rights or property of any Azur Group Entitycommitments for capital expenditures, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practicespractice or pursuant to the Transferred Entities’ current capital expenditures budgets, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesline of business;
(viij) create or permit the creation of any Lien sell, assign, transfer, convey, lease, pledge (other than a any Permitted Lien) on ), mortgage (other than any Permitted Lien), encumber (other than any Permitted Lien), intentionally waive, abandon or otherwise dispose of any properties, rights, claims or assets of the assets Business or any Transferred Entity, in each case other than in the ordinary course of business consistent with past practice;
(k) acquire or enter into an agreement to acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any Azur Group Entities business or division thereof;
(l) make any material election relating to Taxes; adopt or change any material accounting method relating to Taxes; file any material amendment to any Tax Return; enter into any closing agreement with any Tax authority; settle or compromise any material claim or assessment relating to Taxes; or consent to any extension or waiver of the limitations period applicable to any material Taxes or Tax Returns, in each case other than in the ordinary course of business consistent with past practice or as required by GAAP or applicable Law;
(i) make or grant any general or special wage or salary increase (other than in the ordinary course of business and consistent with past practices;
practice since January 1, 2012), (viiiii) except make any increase in the payments of benefits under any Benefit Plan, (iii) take any action with respect to the grant of any material severance or termination pay (other than pursuant to policies or agreements in effect on the date of this Agreement) which will become due and payable after the Closing Date, and (iv) enter into any material employment, consulting or similar agreement or amend any existing employment agreement, in each case other than in the ordinary course of business and business, consistent with past practices, enter into practice or adopt any new, pursuant to existing agreements or amend commitments or terminate any existing, Benefit Plan (including any trust benefit plans or other funding arrangement), other than as required by Law;
(ixn) except to the extent required by the terms of any Benefit Plan materially or any Contract with an Independent Contractor substantially alter or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grantinsurance policies maintained in respect of the Business or any Real Property excluding, benefit or awardfor the avoidance of doubt, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director renewals of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entityexisting insurance policies;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (Ao) adopt a plan or agreement of complete or partial liquidationliquidation dissolution, dissolutionrestructuring, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Transferred Entity, or subject any Transferred Entity to any bankruptcy, receivership, insolvency or similar proceedings;
(xvip) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, audit, claim or waiveaction against any Transferred Entity other than settlements or compromises of litigations, releaseaudits, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
actions (xxi) adopt any change, other than as required by IFRS, for which the amounts paid in its accounting policies, procedures settlement or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, compromise do not exceed $1 million1,000,000 in the aggregate or are covered by insurance and (ii) that do not involve a grant of injunctive relief against any Transferred Entity;
(q) hire any employee with annual compensation exceeding $150,000;
(r) terminate the employment (other than termination for cause of employees other than Key Employees and termination of Key Employees for cause arising from a violation of Law), change the title, office or position, transfer out of the Business, materially reduce the responsibilities of, or otherwise materially change the employment terms (including compensation) of (i) any Key Employee or (ii) any other officer or key personnel of the Business who has a rate of annual compensation exceeding $150,000; or
(xxvs) authorize, agree or commit to do any of the foregoing.
Appears in 1 contract
Conduct of the Business. Azur agreesThe Company shall, as to itself and its Subsidiariesshall cause each Included Subsidiary to, that, during the Pre-Closing Period, except as observe each term set forth in this Section 5.4 of 5.01 and agrees that, from the Azur Disclosure Scheduledate hereof until the Effective Time, as contemplated unless otherwise consented to by Buyer in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably writing (and except for actions necessary to effect only the Reorganization Disposition, all of which actions shall be done in consultation with Buyer):
(subject to a) The Business shall be conducted only in, and the Company and each Included Subsidiary shall not take any action except in, the ordinary course of the business of the Company and each Included Subsidiary, on an arm's-length basis and in accordance in all material respects with this Agreement all applicable laws, rules and regulations and the Related Agreements)Company's and each Included Subsidiary's past custom and practice;
(b) The Company and each Included Subsidiary shall not, directly or indirectly, do or permit to occur any of the following: (i) issue or sell any additional shares of, or as otherwise agreed any options, warrants, conversion privileges or rights of any kind to in writing by Jazz (such agreement not to be unreasonably withheldacquire any shares of, conditioned or delayed)any of its capital stock, (xii) each sell, pledge, dispose of or encumber any of its assets, except in the Azur Group Entities shall conduct ordinary course of business; (iii) amend or propose to amend its Articles of Incorporation or Bylaws; (iv) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock; (v) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities, except in the ordinary course of business and operations solely pursuant to the Company's obligations under the ESOP; (vi) acquire (by merger, exchange, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership, joint venture or other business organization or division or material assets thereof; (vii) incur any indebtedness for borrowed money or issue any debt securities except the borrowing of working capital in the ordinary course of business and consistent with past practices andpractice; (viii) permit any accounts payable owed to trade creditors to remain outstanding more than 60 days, to the extent consistent therewith (and except for accounts payable that are subject to dispute or are not otherwise due in accordance with their terms; (ix) accelerate, beyond the restrictions normal collection cycle, collection of accounts receivable; or (x) enter into or propose to enter into, or modify or propose to modify, any agreement, arrangement or understanding with respect to any of the matters set forth in this Section 5.4(a5.01(b));
(c) Except as set forth in SCHEDULE 5.01(c) of the Disclosure Schedule, neither the Company nor any Included Subsidiary shall, directly or indirectly, (yi) each enter into or modify any employment, severance or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officers or directors or consultants or (ii) in the case of employees, officers or consultants who earn in excess of $50,000 per year, take any action with respect to the grant of any bonuses, salary increases, severance or termination pay or with respect to any increase of benefits payable in effect on the date hereof;
(d) Except as set forth in SCHEDULE 5.01(c) of the Azur Group Entities will Disclosure Schedule, neither the Company nor any Included Subsidiary shall adopt or amend any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, trust, fund or group arrangement for the benefit or welfare of any employees or any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangements for the benefit or welfare of any director;
(e) Neither the Company nor any Included Subsidiary shall cancel or terminate its current insurance policies or cause any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(f) The Company and each Included Subsidiary shall: (i) use its commercially reasonable efforts to preserve intact the business organization and goodwill of the Company and each Included Subsidiary, keep available the services of the Company's and each Included Subsidiary's officers and employees as a group and maintain existing relations satisfactory relationships with suppliers, distributors, customers and goodwill others having business relationships with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which the Company or any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
Included Subsidiary; (ii) issue, deliver, pledge, encumber, sell confer on a regular and frequent basis with representatives of Buyer or authorize Merger Sub to sell any shares report operational matters and the general status of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
ongoing operations; (iii) amend or otherwise alter (or propose not intentionally take any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entityaction which would render, or make which reasonably may be expected to render, any investment representation or warranty made by it in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after untrue at the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group EntityClosing;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoing.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except as set forth in Section 5.4 Each of the Azur Disclosure ScheduleCompany and Parent covenants and agrees that:
(a) From the date hereof through the Closing Date, as contemplated each party shall conduct business only in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect ordinary course (including the Reorganization (subject to and in accordance with this Agreement payment of accounts payable and the Related Agreementscollection of accounts receivable), or as otherwise agreed consistent with past practices, and shall not enter into any material transactions outside the ordinary course of business without the prior written consent of the other party, and shall use its commercially reasonable efforts to in writing by Jazz preserve intact its business relationships with employees, clients, suppliers, contract manufacturing organizations, contract research organizations and other third parties. Without limiting the generality of the foregoing, from the date hereof through and including the Closing Date, without the other party’s prior written consent (such agreement which shall not to be unreasonably withheldconditioned, conditioned withheld or delayed), neither the Company nor Parent shall, and the Company shall cause its Subsidiaries not to:
(xi) each amend, modify or supplement its certificate of incorporation or bylaws or other organizational or governing documents, or engage in any reorganization, reclassification, liquidation, dissolution or similar transaction;
(ii) amend, waive any provision of, terminate prior to its scheduled expiration date, or otherwise compromise in any way or relinquish any material right under, any Material Contract or other right or asset of the Azur Group Entities shall conduct its business and operations Company or Parent, as applicable;
(iii) solely in the case of the Company, modify, amend or enter into any contract, agreement, lease, license or commitment, including for capital expenditures, that would be considered a Material Contract if in effect on of the date hereof, except in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group EntityCompany’s business;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment capital expenditures in any equity securities excess of any other Person, including any joint venture, $200,000 (individually or acquire in the stock or all or substantially all of the assets or rights of any other Person or any division of any other Personaggregate);
(v) sell, lease, license, assign, transfer, abandon, convey license or otherwise dispose of any of the Company's or Parent's, as applicable, material assets, securities, rights except pursuant to existing contracts or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment commitments disclosed herein or in the ordinary course of the Company’s business and consistent with past practices, or Parent’s business (B) not individually in excess of $500,000as applicable);
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make pay, declare or promise to pay any new grant dividends or award, other distributions with respect to its capital stock or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, other equity securities; (B) increase the compensation payable pay, declare or promise to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust stockholder, shareholder or other arrangement funding any Benefit Plan, except to equityholder in its capacity as such (which for the extent required by the existing terms avoidance of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that doubt does not require (x) a term in excess include payment of one year or (y) salary, benefits, commissions and other regular and necessary customary payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices); or (C) if such electionexcept as contemplated by any Additional Agreement, adoptionamend any term, change, amendment, agreement, settlement, surrender, consent right or obligation with respect to any outstanding shares of its capital stock or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Dateequity securities;
(xxiiivii) lend money (A) make any loan, advance or capital contribution to any person Person; (B) incur any Indebtedness, including drawings under the lines of credit, if any, other than (1) loans evidenced by promissory notes made to Parent as working capital advances as described in the Prospectus and (2) intercompany Indebtedness; or (C) repay or satisfy any Indebtedness, other than the repayment of Indebtedness in accordance with the terms thereof (provided, however, that the Company shall not be permitted to repay or satisfy all or any portion of the SVB Loan);
(viii) suffer or incur any Lien, except for Permitted Liens, on the Company’s or Parent’s, as applicable, assets;
(ix) delay, accelerate or cancel, or waive any material right with respect to, any receivables or Indebtedness owed to the Company or Parent, as applicable, or write off or make reserves against the same;
(x) merge or consolidate or enter a similar transaction with, or acquire all or substantially all of the assets or business of, any other Person; make any material investment in any Person; or be acquired by any other Person;
(xi) terminate or allow to lapse any insurance policy protecting any of the Company’s or Parent’s assets, unless simultaneously with such termination or lapse, a replacement policy underwritten by an insurance company of nationally recognized standing having comparable deductions and providing coverage equal to or greater than the coverage under the terminated or lapsed policy for substantially similar premiums or less is in full force and effect;
(xii) adopt any severance, retention or other employee plan or fail to continue to make timely contributions to each benefit plan in accordance with the terms thereof;
(xiii) institute, settle or agree to settle any Action before any Authority, in each case in excess of $100,000 (exclusive of any amounts covered by insurance) or that imposes injunctive or other non-monetary relief on such party;
(xiv) except as required by U.S. GAAP, make any material change in its accounting principles, methods or practices or write down the value of its assets;
(xv) change its principal place of business or jurisdiction of organization;
(xvi) issue, redeem or repurchase any Equity Interests (other than (A) with respect to the Company, the exercise of any Company Option outstanding on the date hereof or the exercise of the Company Warrant, (B) with respect to Parent, any redemption by Parent of Parent Class A Shares held by its public stockholder pursuant to Section 7.6, or (C) with respect to Parent, as otherwise contemplated by this Agreement or any Additional Agreement);
(xvii) (A) make, change or revoke any material Tax election; (B) change any annual Tax accounting periods; (C) settle or compromise any material claim, notice, audit report or assessment in respect of Taxes of the Company; (D) enter into any Tax allocation, Tax sharing, Tax indemnity or other closing agreement relating to any Taxes of the Company; or (E) surrender or forfeit any right to claim a material Tax refund;
(xviii) enter into any transaction with or distribute or advance any assets or property to any of its Affiliates, other than the payment of salary and benefits in the ordinary course;
(xix) solely in the case of the Company, other than as required by a Plan, as set forth on Schedule 7.1(a)(xix) or as explicitly contemplated hereunder, (A) increase or make any material change in the compensation or benefits of any employee or other individual service provider of the Company other than in the ordinary course of the Company’s business consistent with past practice, (B) accelerate the vesting or payment of any compensation or benefits of any employee or other individual service provider of the Company, (C) terminate without “cause” any employee or other individual service provider of the Company, (D) hire or engage any new employee or other individual service provider of the Company if such new employee or individual service provider will receive annual base compensation in excess of $100,000, (E) make any loan to any present or former employee or other individual service provider of the Company, other than advancement of expenses to its current employees in the ordinary course of business and consistent with past practices, or (F) enter into, amend or guarantee the indebtedness of terminate any Personcollective bargaining agreement or other agreement with a labor union or labor organization;
(xxivxx) make solely in the case of the Company, enter into any capital expenditures, except for capital expenditures that, when added Affiliate Transactions;
(xxi) fail to duly observe and conform in all material respects to all other capital expenditures made on behalf of applicable Law, including the Azur Group Entities during the Pre-Closing PeriodExchange Act, do not exceed $1 millionand Orders; or
(xxvxxii) agree or commit to do any of the foregoing.
Appears in 1 contract
Conduct of the Business. Azur agrees(a) From and after the date hereof and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 8.01 and except (x) as may be agreed in writing by Parent (which consent shall not be unreasonably withheld), (y) as may be expressly permitted pursuant to itself and its Subsidiaries, that, during the Pre-Closing Period, except this Agreement or (z) as set forth in Section 5.4 6.01 of the Azur Company Disclosure Schedule, as contemplated in Schedule 1the Company:
(i) shall, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) shall cause each of the Azur Group Entities shall its Subsidiaries to, conduct its business and operations solely in the ordinary course of business and consistent with past practices andin substantially the same manner as heretofore conducted;
(ii) shall use its reasonable best efforts, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of its Subsidiaries to use its reasonable best efforts, to preserve intact its business organization and goodwill, keep available the Azur Group Entities services of its current officers and other key employees and preserve its relationships with those persons having business dealings with the Company and its Subsidiaries;
(iii) shall notify Parent of any emergency or other change in the normal course of its or its Subsidiaries' respective businesses or in the operation of its or its Subsidiaries' respective properties, and of any complaints, investigations or hearings (or communications indicating that the same may be contemplated) of any Governmental Authority, if such emergency, change, complaint, investigation or hearing could reasonably be expected to have a Company Material Adverse Effect;
(iv) shall not, and shall not permit any of its Subsidiaries to, directly or indirectly doauthorize, or commit to do, any of the following:
(i) declare, accrue, set aside declare or pay any dividend dividends on or make any other distribution in with respect of any to its outstanding shares of capital stock or other securitiesequity interests;
(v) shall not, and shall not permit any of its Subsidiaries to, split, combine or reclassify any of its capital stock or other equity interests or issue or authorize or propose the issuance of any other securities or other equity interests in respect of, in lieu of or in substitution for, shares of its capital stock or other equity interests other than the issuance of capital stock pursuant to options, warrants and convertible securities outstanding as of the date of this Agreement or permitted pursuant to Section 6.01(viii);
(vi) shall not, and shall not permit any of its Subsidiaries to, enter into or amend any employment, severance or similar agreements or arrangements with any of their respective directors or officers, or repurchaseenter into, adopt or amend any other Company Employee Benefit Plan (other than to address non-material issues or make changes that do not have, individually or in the aggregate, a financial impact on the Company Employee Benefit Plans);
(vii) shall not, and shall not permit any of its Subsidiaries to, authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the Merger);
(viii) shall not, and shall not permit any of its Subsidiaries to, propose or adopt any amendment to its Organizational Documents;
(ix) shall not, and shall not permit any of its Subsidiaries to, issue or authorize the issuance of, or agree to issue or sell any shares of their capital stock of any class, or any other equity interests (in each case, whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise); provided that the Company shall be permitted to (i) grant options, at an exercise price equal to the fair market value of the Company Common Stock as of the date of such grant, to purchase up to an aggregate of 300,000 shares of Company Common Stock per quarter pursuant to the Company's option plans currently in effect, provided that in no event shall the Company be permitted to grant options to purchase in excess of an aggregate of 20,000 shares of Company Common Stock to any single Person under any of the foregoing plans, taken as a whole and (ii) issue shares of Company Common Stock pursuant to the terms of the ESPP;
(x) shall not, and shall not permit any of its Subsidiaries to, grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or any other equity interests; provided that the Company shall be permitted to (i) grant options at an exercise price equal to the fair market value of the Company Common Stock as of the date of such grant to purchase up to an aggregate of 300,000 shares of Company Common Stock per quarter pursuant to the Company's option plans currently in effect, provided that in no event shall the Company be permitted to grant options to purchase in excess of an aggregate of 20,000 shares of Company Common Stock to any single Person under any of the foregoing plans, taken as a whole and (ii) issue shares of Company Common Stock pursuant to the terms of the ESPP;
(xi) shall not, and shall not permit any of its Subsidiaries to, purchase, redeem or otherwise acquire any shares of its capital stock or other securities ofstock, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except repurchases of unvested shares at cost in connection with respect the termination of the employment relationship with any employee pursuant to stock option or purchase agreements in effect on the date hereof or the net exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities options or warrants currently outstanding or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000permitted hereunder;
(xii) enter into or forgive any loan to employeesshall not, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or and shall not permit any of the assets owned its Subsidiaries to, incur, assume or used by it to become bound by prepay any contract that is indebtedness or would constitute a Material Contract, any other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contractliabilities, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annumpractice;
(xixxiii) shall not, and shall not permit any of its Subsidiaries to, (i) make any loans, advances or capital contributions to, or investments in, any other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement person, or (Bii) the commencement of pay, discharge or satisfy any litigation for patent infringement in response to any certification of non-infringement claims, liabilities or invalidity in respect of any Approved Product contained in any ANDA obligations (absolute, accrued, asserted or similar filingunasserted, commence contingent or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any changeotherwise), other than as required by IFRSindebtedness, in its accounting policiesissuances of debt securities, procedures guarantees, loans, advances, capital contributions, investments, payments, discharges or practices;
(xxi) license satisfactions incurred or permit any rights committed to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datepractice;
(xxiiixiv) lend money shall not, and shall not permit any of its Subsidiaries to, sell, lease, license, mortgage or otherwise encumber or subject to any person Lien or otherwise dispose of any of its properties or assets (except for business expenses to its current employees including securitizations), other than in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Personpractice;
(xxivxv) shall not, and shall not permit any of its Subsidiaries to, (a) make or change any material Tax election or settle or compromise any material Tax liability other than in the ordinary course of business consistent with past practices or (b) change its fiscal year;
(xvi) except as described in the Company SEC Reports, or as required by a Governmental Authority, shall not change its methods of accounting (including making any material write-off or reduction in the carrying value of any assets) in effect at June 30, 2000, other than as required by changes in GAAP as agreed by the Company's independent auditors;
(xvii) except as contemplated by this Agreement, shall not amend or modify the Rights Agreement;
(xviii) shall not, and shall not permit any of its Subsidiaries to, terminate, amend or otherwise modify any Contract between the Company and any of its Subsidiaries, on the one hand, and Intel Corporation and its Subsidiaries, on the other hand;
(xix) shall not, and shall not permit any of its Subsidiaries to, enter into, amend or otherwise modify any existing supply Contract or other Contract that obligates the Company or any Subsidiary to make aggregate payments, or incur aggregate liabilities or other obligations, in excess of $10,000,000; and
(xx) shall not, and shall not permit any of its Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions or take any action which would (x) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
representation or warranty in Article V untrue or incorrect or (xxvy) agree or commit to do result in any of the foregoingconditions to the Merger set forth in Article VII not being satisfied.
(b) From and after the date hereof and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 8.01 and except (x) as may be agreed in writing by the Company (which consent shall not be unreasonably withheld), (y) as may be expressly permitted pursuant to this Agreement or (z) as set forth in Section 6.02 of the Parent Disclosure Schedule, Parent:
(i) shall not authorize, declare or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock or other equity interests; and
(ii) shall not agree, in writing or otherwise, to take any action which would result in any of the conditions to the Merger set forth in Article VII not being satisfied.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, The Company agrees that, during the Pre-period from the date hereof until the earlier of the Closing Periodor the termination of this Agreement, except as (i) otherwise expressly contemplated hereby; (ii) set forth in Section 5.4 5.1 of the Azur Company Disclosure Schedule; or (iii) consented to by Buyer, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement which consent shall not to be unreasonably withheld, conditioned or delayed), (x) the Company shall, and shall use its commercially reasonable efforts in its capacity as sole shareholder to cause each of its Subsidiaries to (and Seller agrees in its capacity as sole shareholder of the Azur Group Entities shall Company to cause the Company and its Subsidiaries to):
(a) conduct its their respective businesses, and maintain their respective assets, properties, business organizations and operations solely relationships with customers, suppliers and employees, in each case in the ordinary course of business and consistent with past practices and, to practice;
(b) not amend the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each certificate of incorporation or bylaws or other organizational documents of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which Company or any of the Azur Group Entities has significant business relations and its Subsidiaries;
(zc) subject to applicable Law as agreed in good faith by counsel to Jazznot transfer, Azur shall not and shall cause each issue, deliver, sell, pledge, dispose of the Azur Group Entities not toor encumber, directly or indirectly do, authorize or commit to dothe issuance, any of the following:
(i) declaresale, accruepledge, set aside disposition or pay any dividend or make any other distribution in respect encumbrance of any shares of capital stock of any class of the Company or any of its Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock of, or any other ownership interest in, the Company or any of its Subsidiaries;
(d) not repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, the Company or any Azur Group Entityof its Subsidiaries;
(iie) issuenot reclassify, delivercombine, pledgesplit, encumbersubdivide or redeem, sell purchase or authorize to sell otherwise acquire, directly or indirectly, any shares of its capital stock, or any security or right exchangeable or exercisable for, or convertible into, the capital stock of or other equity interests in any Azur Group Entity, the Company or any securities convertible into of its Subsidiaries or declare or pay any such shares of dividend on the capital stock or other equity interests, of the Company or any rights, warrants or options to acquire any such shares Subsidiary of capital stock or the Company other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreementthan in cash;
(iiif) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
practice, not (viiii) incur any indebtedness for borrowed money (except for short term indebtedness incurred in the ordinary course of business and consistent with past practicesbusiness); (ii) make any capital expenditures in excess of $2,000,000 except as provided in the capital plan of the Company for 2005; (iii) sell or dispose of any of its properties or assets having a value individually or in the aggregate in excess of $2,000,000; (iv) make any loans, enter into advances or adopt any newcapital contributions to, or amend investments in, any other Person on behalf of the Company or terminate any existingof its Subsidiaries; or (v) make any change in any of the present accounting methods and practices of its business, Benefit Plan (including any trust or other funding arrangement), other than except as required by Lawchanges in GAAP;
(ixg) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and business, consistent with past practices and that does practice, not require (x) a term in excess of one year enter into, amend, extend, materially modify, terminate or (y) payments by renew any Azur Group Entity in excess of $500,000 per annumMaterial Contract;
(xixh) other than in the ordinary course of business, consistent with past practice, not modify or amend the employment arrangements with senior executive officers of the Company and its Subsidiaries, enter into or amend any employment, severance, termination or other similar agreement (A) except in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement hiring of any litigation for patent infringement in response new employee earning less than $100,000 per year), adopt any new or amend any existing Company Plan (except as may be required by applicable law), or make any loans to any certification of non-infringement its officers, directors, employees, agents or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rightsconsultants;
(xxi) adopt not assign, transfer, convey, lease or otherwise dispose of any changeof the material properties or assets (except for inventory, obsolete equipment, or other than as required by IFRS, assets sold for fair consideration in the ordinary course of business consistent with past practice) or the Company or any of its accounting policies, procedures or practicesSubsidiaries;
(xxij) license not permit the Company or permit any rights of its Subsidiaries to lapse in enter into or agree to enter into any Material Azur IP Rights;merger or consolidation with any corporation or other entity; and
(Ak) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Lawwould not have an adverse effect on Buyer, (B) the Company, any of its Subsidiaries or any of their Affiliates in a Post-Closing Tax Period, not make or change any Tax electionelection in respect of Taxes, (C) file adopt or amend change any Tax Return or (D) material accounting method in respect of Taxes, enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund agreement in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxes, or take any similar action or omit to take any action relating to the filing of any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions Tax Return or waivers made in the ordinary course payment of business consistent with past practices) any Tax if such election, adoption, change, amendment, agreement, settlement, surrender, consent action or other action omission would have the effect of increasing the present or future Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any present or future Tax attribute asset of Buyer, the Company or any Azur Group Entity or the Jazz Group Entities existing on the Closing Dateof its Subsidiaries;
(xxiiil) lend money to any person (except for any controversy in respect of Taxes, which shall be governed exclusively by Section 5.1(k) hereof, not settle or compromise any material controversy if the settlement pertains to the Company or any of its Subsidiaries (excluding any settlement in respect of either the Amber Matter or any Asbestos Claim to the extent not directly impacting the ongoing business expenses of the Company or any of its Subsidiaries or otherwise affecting the Company or any of its Subsidiaries (other than by monetary payment or by any action or commitment to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;be performed by Seller contemplated by this Agreement); and
(xxivm) make not agree, commit, or adopt any capital expenditures, except for capital expenditures that, when added plan or proposal to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do take any of the foregoingactions set forth in clauses (b) through (l) above.
Appears in 1 contract
Conduct of the Business. Azur agreesPending the Closing. During the period from the date of this Agreement to the Closing, as Hughes and the Sellers shall use commercially reasonable efforts to itself cause the Company and its SubsidiariesSubsidiaries to conduct their respective businesses and operations in the ordinary course, thatto maintain and preserve their business organization and their material rights and franchises and to retain the services of their officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties to the end that their goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, during the Pre-Closing Periodperiod from the date of this Agreement to the Closing, except as set forth in Section 5.4 Hughes and the Sellers shall use commercially reasonable efforts tx xxxxe the Company and its Subsidiaries not to, without the prior written consent of Purchaser:
(a) do or effect any of the Azur Disclosure Schedulefollowing actions with respect to the Company's or any of its Subsidiaries' securities: (i) adjust, as contemplated in Schedule 1split, as required by this Agreement combine, recapitalize or the Related Agreementsreclassify its capital stock, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements)ii) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, other than pursuant to that certain Tax Sharing Agreement (unexecuted as otherwise agreed to of the date hereof but in writing effect by Jazz (such mutual agreement not to be unreasonably withheld, conditioned or delayed)and practice) by and between the Company and Hughes, (xiii) grant any Person any right or option to acquire any xxxxxx of its capital stock, other than grants of rights or options (A) to individuals who are hired or promoted on or after the date hereof, (B) after prior notice by PanAmSat to the chief executive officer of Euripides describing special circumstances to employees affected by such circumstances, and (C) to acquire not more than 3,000,000 shares of Company Common Stock, in each of the Azur Group Entities shall conduct its business and operations solely case in the ordinary course of business and business, consistent with past practices and, to practice and which will not accelerate in vesting or exercisability as a result of or in connection with the extent consistent therewith (and subject to the restrictions set forth in transactions contemplated by this Section 5.4(a))Agreement, (yiv) each issue, deliver or sell or agree to issue, deliver or sell any additional shares of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authoritiesits capital stock or any securities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly instruments or indirectly do, obligations convertible into or commit to do, any of the following:
(i) declare, accrue, set aside exchangeable or pay any dividend or make any other distribution in respect of exercisable for any shares of its capital stock or other securitiessuch securities (except pursuant to the exercise of outstanding options and options issued after the date hereof) or (v) enter into any agreement, understanding or repurchase, redeem arrangement with respect to the sale or otherwise acquire any shares voting of its capital stock or other securities of, or other ownership interests in, any Azur Group Entitystock;
(iib) issuetake any intentional or improper action to interfere with the Company's or its Subsidiaries' existing contractual or economic relationships with its suppliers, deliverequipment manufacturers, dealers and retailers;
(c) sell, transfer, lease, pledge, encumbermortgage, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey encumber or otherwise dispose of any assets, securities, rights amount of its property or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except that is material to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or awardCompany and its Subsidiaries, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance taken as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contractwhole, other than in the ordinary course of business and business, consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annumpractice;
(xixd) other than make or propose any changes in its certificate of incorporation or by-laws (Aor equivalent organizational documents);
(e) in connection merge or consolidate with any actual other Person or alleged breach of this Agreement acquire assets or any Related Agreement or (B) the commencement capital stock of any litigation for patent infringement in response other Person which are material to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filingthe Company and its Subsidiaries, commence or settle or compromise any litigationtaken as a whole, or waive, release, relinquish or assign enter into any material claims or material rights, including confidentiality agreement with any Person with respect to any Azur IP Rightssuch transaction;
(xxf) adopt create any changeSubsidiaries which are material to the Company and its Subsidiaries taken as a whole and which are not, other than as required directly or indirectly, wholly owned by IFRS, in its accounting policies, procedures or practicesthe Company;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (Dg) enter into or modify any closing agreementemployment, settle severance, change in control, termination or similar agreements or arrangements with, or grant any Tax claim bonuses, salary increases, severance or assessment relating to termination pay to, or otherwise increase the compensation or benefits of, any officer, director, consultant or employee of the Azur Group Entities, surrender any right to claim a refund of Taxes, Company or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case its Subsidiaries other than electionspayment of severance or termination benefits or increases in salary, filings, settlements, closing agreements, extensions compensation or waivers made benefits granted in the ordinary course of business consistent with past practices) if such electionpractice, adoption, change, amendment, agreement, settlement, surrender, consent except as may be required by Applicable Law or other action would have the a binding written contract in effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datedate of this Agreement;
(xxiiih) lend money except as may be required by Applicable Law or by accounting principles, change any method or principle of accounting in a material manner that is inconsistent with past practice;
(i) take any action that would reasonably be expected to any person result in the representations and warranties set forth in Article 4 becoming false or inaccurate such that the condition set forth in Section 8.2(a) would fail to be satisfied;
(j) except for business expenses any refinancing of the promissory note dated May 15, 1997, issued by the Company to Hughes, enter into or carry out any other transaction which is matxxxxx to the Company and its current employees Subsidiaries, taken as a whole, other than in the ordinary and usual course of business;
(k) enter into or amend any agreement or understanding between the Company and either of Hughes or GM or their respective Subsidiaries (other than agreemenxx xxxered into in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Personbusiness);
(xxivl) make take any capital expenditures, except for capital expenditures that, when added action which could reasonably be expected to all other capital expenditures made on behalf adversely affect or delay the ability of any parties hereto to obtain any approval of any Governmental Body required to consummate the Azur Group Entities during the Pre-Closing Period, do not exceed $1 milliontransactions contemplated hereby; or
(xxvm) agree in writing or commit otherwise to do any of the foregoinganything prohibited by this Section 7.2.
Appears in 1 contract
Samples: Stock Purchase Agreement (Echostar Communications Corp)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during (a) From the Pre-date hereof until the Closing PeriodDate, except as set forth in Section 5.4 on the attached Conduct of the Azur Disclosure Schedule, Business Schedule and except as contemplated in Schedule 1, as required otherwise provided for by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed consented to in writing by Jazz (such agreement Purchaser, which consent will not to be unreasonably withheld, conditioned withheld or delayed), (x) each the Company shall use its commercially reasonable efforts to carry on the business of the Azur Group Entities shall conduct Company and its business and operations solely Subsidiaries in the ordinary course of business and consistent with past practices andsubstantially in the same manner as previously conducted; provided that, the foregoing notwithstanding, the Company may use all available cash to repay any Funded Debt and any Company Expenses prior to the extent consistent therewith Closing.
(b) From the date hereof until the Closing Date, except as otherwise provided for by this Agreement or consented to in writing by Purchaser, which consent will not be unreasonably withheld or delayed, the Company shall not, and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which shall not permit any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not its Subsidiaries to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside issue or pay any dividend or make any other distribution in respect of sell any shares of its or any Subsidiary’s capital stock or (other securities, or repurchase, redeem or otherwise acquire any shares than issuances of capital stock or other securities of, or other ownership interests in, any Azur Group Entitypursuant to the exercise of Options outstanding on the date hereof);
(ii) issueissue or sell any securities convertible into, deliveror options with respect to, pledge, encumber, sell warrants to purchase or authorize rights to sell subscribe for any shares of capital stock of or other equity interests in any Azur Group Entity, its or any securities convertible into any such shares of Subsidiary’s capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreementstock;
(iii) amend effect any recapitalization, reclassification, stock dividend, stock split or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entitylike change in its capitalization;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person amend its or any division Subsidiary’s certificate or articles of any other Personincorporation or bylaws;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entityother than the Merger);
(xvivi) renew alter through merger, liquidation, reorganization, restructuring or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit other fashion the operations corporate structure of any Azur Group Entity in any material respectSubsidiary;
(xviivii) (A) enter intoincur, assume or permit forgive any of the assets owned long-term or used by it to become bound by short-term debt or issue any contract that is or would constitute a Material Contract, debt securities other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made borrowings in the ordinary course of business consistent with past practices; (B) if such electionassume, adoptionguarantee, changeendorse or otherwise become liable or responsible (whether directly, amendment, agreement, settlement, surrender, consent contingently or other action would have otherwise) for the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute obligations of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any other person (except for business expenses to its current employees obligations of any Subsidiary incurred in the ordinary course of business and consistent with past practices; (C) make any loans, advances or guarantee capital contributions to or investments in any other person (other than to a Subsidiary or customary loans or advances to employees in each case in the indebtedness ordinary course of business consistent with past practices of less than $10,000); (D) pledge or otherwise subject to any Lien shares of capital stock of the Company or any Subsidiary or any of the other interests; or (E) mortgage or pledge any of its properties or assets, tangible or intangible, or create or suffer to exist any new Lien (or any increase or expansion of the scope of any Personexisting Lien) thereupon other than as a result of modifications to synthetic lease agreements outstanding on the date hereof;
(xxivviii) except as may be permitted by Section 6.01(b)(ix) below or as may be required by Applicable Law,
(A) enter into or amend any employment agreement or any bonus, profit sharing or severance agreement other than (x) offer letters to new hires in the ordinary course of business consistent with past practices provided that no such offer letter shall provide (1) for the grant of options under the Employee Benefit Plans that will provide for acceleration, or (2) provide any severance rights, in either case as a result of the transactions contemplated by this Agreement whether or not in connection with any other event, including termination of employment, or alter any “at will” employment relationship and (y) options under the Employee Benefit Plans to purchase shares permitted by Section 6.01(b)(ii) above, or
(B) enter into, adopt, amend in any manner or terminate any pension, retirement, deferred compensation, employment, health, life, or disability insurance, dependent care, severance or other employee benefit plan agreement, trust, fund or other arrangement for the benefit or welfare of any director, officer, employee or consultant in any manner or
(C) increase in any manner the compensation or fringe benefits of any existing director, officer or employee, other than increases for employees of the Government services division and increases in the ordinary course of business for other employees which, on average, will not exceed ten percent (10%) of such employees’ base salary, as set forth on the Compensation Schedule.
(ix) agree to pay any severance or termination pay to any director, officer, employee or consultant, except (A) pursuant to written agreements outstanding on the date hereof or the Company’s policy or practice in existence on the date hereof or (B) as required by Applicable Law;
(x) except as permitted by Section 6.01(b)(xiii)(D) below, purchase, acquire, lease or license-in any material assets in any single transaction or series of related transactions having a fair market value in excess of $100,000 in the aggregate, or sell, transfer or otherwise dispose of any assets other than sales in the ordinary course of business consistent with past practice;
(xi) except as may be required as a result of a change in law or in GAAP, change any of the accounting principles, practices or methods used by it;
(xii) revalue any of its assets or properties, including writing down the value of assets or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices or due to changes in GAAP requiring such revaluation that are adopted after the date hereof;
(A) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other person or division or business unit thereof or any equity interest therein; (B) enter into any contract or agreement that would be material to the Company and its Subsidiaries, taken as a whole, other than customer contracts in the ordinary course of business consistent with past practices; (C) amend, modify or waive any right under any Material Contract (other than customer contracts) of the Company or any Subsidiary; (D) modify its standard warranty terms or amend or modify any warranties in effect as of the date hereof in any material manner that is adverse to the Company or any Subsidiary; (E) authorize any additional or new capital expenditure or expenditures that individually or in the aggregate are in excess of $100,000; or (F) enter into any contract that contains non-competition restrictions;
(xiv) make or rescind any capital expendituresmaterial election relating to Taxes or settle or compromise any Tax liability or enter into any closing or other agreement with any Tax Authority in each case with respect to any material Tax liability; or file or cause to be filed any material amended Tax Return, file or cause to be filed any claim for refund of Taxes previously paid, or agree to an extension of a statute of limitations with respect to the assessment or determination of Taxes, except for capital expenditures thatin each case as to which the resulting Tax liability is paid prior to Closing or reflected in Net Working Capital;
(xv) fail to file any material Tax Returns when due, fail to cause such Tax Returns when added filed to be true, correct and complete in all other capital expenditures made material respects, prepare or fail to file any Tax Return in a manner inconsistent with past practices in preparing or filing similar Tax Returns in prior periods or, on behalf any such Tax Return of the Azur Group Entities during Company, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods, in each case, except to the Pre-Closing Periodextent required by Applicable Law, do not exceed or fail to pay any Taxes when due;
(xvi) settle or compromise any pending or threatened suit, action or claim that (A) relates to the transactions contemplated hereby or (B) the settlement or compromise of which would require the payment by the Company or any Subsidiary of damages in excess of $1 million100,000 or that would otherwise be material to the Company or involves any equitable relief, except to the extent such amount would be paid or accrued as a reserve prior to Closing;
(xvii) enter into any licensing, distribution, sponsorship, advertising, merchant program or other similar contracts, agreements, or obligations which provide for payments by the Company or any Subsidiary in an amount in excess of $50,000 over the noncancelable term of the agreement;
(xviii) engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement;
(xix) amend or terminate any insurance policy (other than the key man insurance policies for Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxx and Xxxxx XxXxxx) without replacing such policy with a policy providing at least equal coverage, insuring comparable risks and issued by an insurance company financially comparable to the prior insurance company;
(xx) fail to pay when due, consistent with past practices, its financial obligations in the ordinary course of business, including payments to vendors, landlords and employees; or
(xxvxxi) agree in writing or commit otherwise to do take any of the foregoingactions described in Sections 6.01(b)(i) through 6.01(b)(xx).
Appears in 1 contract
Samples: Merger Agreement (Kforce Inc)
Conduct of the Business. Azur agrees, as Following the date of this Agreement and prior to itself and its Subsidiaries, that, during the Pre-earlier of the Closing Periodor the termination of this Agreement pursuant to Article 8, except as expressly contemplated by this Agreement, as set forth in Section 5.4 4.3 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements)applicable Law, or as otherwise agreed to in writing by Jazz with the prior written consent of Buyer (such agreement consent not to be unreasonably withheld, conditioned withheld or delayed), (x) each of Seller shall, and shall cause the Azur Group Entities shall conduct its business and operations solely Companies to, (1) operate the Business in the ordinary course of business and consistent with past practices and, to the extent consistent therewith practice and (and subject to the restrictions set forth in this Section 5.4(a)), (y2) each of the Azur Group Entities will use commercially reasonable efforts to preserve the Business substantially intact and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokerssuppliers, suppliers licensors, licensees, creditors and other Persons with which any employees; and (y) without limiting the provisions of the Azur Group Entities has significant business relations and foregoing clause (z) subject to applicable Law as agreed in good faith by counsel to Jazzx), Azur Seller shall not not, and shall cause each of the Azur Group Entities Companies not to, directly or indirectly do, or commit to do, :
(a) amend any of the following:Organizational Documents of the Group Companies;
(b) (i) declareadjust, accruesplit, set aside or pay any dividend subdivide, combine, recapitalize, reclassify or make any other distribution change in respect the capital stock of the Group Companies, (ii) directly or indirectly transfer, issue, deliver, sell, offer to sell, authorize, encumber, pledge or dispose of any shares of the capital stock or other securities, any securities convertible or repurchase, redeem exchangeable into or otherwise acquire exercisable for any shares of the capital stock of the Group Companies, (iii) grant any Person options, warrants, calls or other rights to purchase or otherwise acquire, repurchase or redeem equity securities of, or any stock appreciation, phantom stock or other ownership interests insimilar right with respect to, the Group Companies or (iv) declare or pay any Azur dividends or distributions of Equity Securities of the Group EntityCompanies;
(iic) issueexcept as provided on Section 4.3(c) of the Disclosure Schedule or as may be required under applicable Law, deliver(i) increase the annual compensation or benefits payable or to become payable to any of the directors, pledgeofficers, encumbercurrent or former employees, sell independent contractors or authorize to sell any shares consultants of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity intereststhe Business, except for increases in compensation and benefits (A) which are made in the ordinary course of business with past practice with respect to exercise of Azur Options outstanding prior employees with a base salary less than $150,000, (B) to the extent required by applicable Law, this Agreement or any Benefit Plan or (C) to comply with Section 409A of the Code and guidance applicable thereunder; (ii) hire, terminate (other than for cause), transfer or promote any U.S. Employee (or any individual who would be a U.S. Employee if employed on the date hereof), except in the ordinary course of this Agreementbusiness consistent with past practice with respect to employees with a base salary less than $150,000; (iii) hire any individual who would be an Other Country Employee employed on the date hereof, except in the ordinary course of business consistent with past practice with respect to employees with a base salary less than $150,000 (or local currency equivalent thereof); (iv) transfer the employment of any employee of Seller or any of its Affiliates who is not an Employee as of the date hereof such that such individual becomes an Employee; (v) establish, adopt, enter into, amend in any material respect, commence participation in or terminate any Assumed Plan or any plan, policy, program, arrangement or agreement that would be an Assumed Plan if it were in existence as of the date hereof; or (vi) take any action to accelerate the vesting or payment of any compensation or benefits or any action to fund or secure the payment of any compensation or benefits to any U.S. Employee or Other Country Employee or any current or former employee, director, officer, independent contractor or consultant of any Group Companies or the Business;
(iiid) amend directly or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) indirectly sell, lease, license, assign, transfer, abandonpledge, convey encumber, grant, allow to lapse or otherwise dispose of any assetsmaterial asset, securities, rights or property including the capital stock of any Azur the Group EntityCompanies, other than in each case (Ai) sales the sale of inventory and equipment in the ordinary course of business and consistent with past practicespractice, (ii) the disposition of used, obsolete or excess equipment, (iii) other dispositions, including non-exclusive licenses of Intellectual Property Rights to customers and distributors of the products of the Group Companies, made in the ordinary course of business consistent with past practice, or (Biv) not individually in excess of $500,000any Permitted Liens;
(vie) incur change in any Indebtednessmaterial respect its accounting policies or procedures, enter into any new other than as required by a change after the date hereof in GAAP or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesapplicable Law;
(viif) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
business, (viiii) except in the ordinary course of business and consistent with past practicessell, enter into lease, license or adopt acquire any newreal property, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xii) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severancethat provides for the leasing, termination or similar paymentsubleasing, licensing, use, or any bonus leasehold or similar payment (other than payment interest, as applicable, of or in respect any real property involving annual payments in excess of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity$50,000;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (Ag) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization restructuring or other reorganization with respect to Seller or the Group Companies;
(h) acquire by merging or consolidating with, or purchasing all or a material portion of the assets or Equity Securities of, any corporation, partnership, association or other business organization or division thereof;
(i) with respect to any of the Group Companies or the Business, make or commit to make any capital expenditures that exceed, in the aggregate, $50,000, except for capital expenditures set forth on Section 4.3(i) of the Disclosure Schedule;
(j) waive the restrictive covenant obligations of any Employee or any former employee of Seller or its Affiliates who performed services for the Business;
(k) except as required by applicable Law, (i) enter into any labor agreement, collective bargaining agreement or any other labor-related agreements or arrangements with any labor union, labor organization or works council; or (Bii) recognize or certify any labor union, labor organization, works council or group of employees of Seller or its Affiliates as the bargaining representative for any Employees;
(l) except in the case of an action taken by an affiliated, consolidated, combined or unitary group of which any of the Group Companies are members along with Seller or an of its Affiliates (other than the Group Companies), with respect to the Group Companies, (i) make, change or revoke any material Tax election, (ii) adopt or change any material method of Tax accounting, (iii) amend any material Tax Return, (iv) settle or compromise any material claim, notice, audit, assessment or other proceeding relating to Taxes, (v) fail to file any material Tax Return when due, (vi) surrender or compromise any right to claim a material Tax refund, offset or other material reduction in Tax Liability, (vii) enter into any agreement affecting any material Tax Liability or exercise refund or file any discretion providing request for acceleration rulings or special Tax incentives with any Taxing Authority, (viii) enter into any Tax Sharing Agreement, (ix) extend or waive the statute of payment limitations period applicable to any material Tax or performance as a Tax Return, or (x) other than in the ordinary course of business, take, cause or otherwise permit any other Person to take or cause any action which could (A) increase Buyer’s or any of its Affiliates (which following the Closing shall include the Group Companies) Liability for Taxes or (B) result in, or change the character of, any income or gain that Buyer or any of a change of control of its Affiliates (which following the Closing shall include the Group Companies) must report on any Azur Group EntityTax Return;
(xvim) renew or (i) enter into any Contract with that, if in effect on the date hereof, would be a Material Contract or a Government Contract other than in the ordinary course of business, (ii) amend, modify, renew or waive any non-compete material rights or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, Material Contract or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, Government Contract other than in the ordinary course of business and consistent or (iii) terminate any Material Contract or Government Contract (other than expirations of any such Contract or Government Contract in accordance with past practices and its terms);
(n) initiate, compromise or enter into any settlement of pending Actions, except any compromise or settlement that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) restrict in connection with any actual manner the operation of the Business or alleged breach of this Agreement or any Related Agreement or the Group Companies; (B) require any admission of negligence, misconduct, liability, culpability or responsibility by any Group Companies or the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, Business; (C) file require any non-monetary action or amend inaction of any Tax Return Group Companies; or (D) enter into require (or would reasonably be expected to require) a monetary payment of greater than $100,000 and, if less than $100,000, then only to the extent such compromise or settlement is paid in full prior to the Closing or reflected in full as a current Liability for purposes of calculating Closing Working Capital;
(o) incur any closing agreement, settle Funded Indebtedness or any Tax claim Liens on any property or assessment relating to assets of any of Group Companies or the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity Business (in each case other than electionsPermitted Liens), filings, settlements, closing agreements, extensions except for (i) Liens to be released at or waivers made prior to the Closing or (ii) advancement of credit to customers or expenses to employees in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datepractice;
(xxiiip) lend money to enter into any person (Contract with any Related Party, except for business expenses to its current employees the purchase orders for the purchase and sale of products and services entered into in the ordinary course of business and consistent with past practices) practice or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionAncillary Agreements contemplated hereby; or
(xxvq) agree or otherwise commit to do any of the foregoing. Notwithstanding anything to the contrary in this Section 4.3, the following will not be considered a violation of this Section 4.3 or of any other obligation of Seller to operate the Business as carried on by the Group Companies in the ordinary course of business consistent with past practice: any action taken or not taken by Seller or the Group Companies in good faith in order to comply with any quarantine, “shelter in place”, “stay at home”, social distancing, shut down, closure, sequester or other Laws, guidelines or recommendations of any Governmental Authority in connection with or in response to COVID-19. Any action expressly permitted under any one clause of this Section 4.3 shall be permitted under all other clauses of this Section 4.3. Nothing contained in this Agreement shall give Buyer, directly or indirectly, rights to control or direct the operations of the Group Companies before the Closing. Before the Closing, Seller shall, consistent with the terms and conditions of this Agreement, exercise complete control and supervision over the operations of the Group Companies.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, Waitr agrees that, during the Pre-Closing Periodperiod commencing on the date of this Agreement and ending as of the earlier of (x) termination of this Agreement in accordance with Article VIII, and (y) the Closing, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as otherwise contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed consented to in writing by Jazz Landcadia (such agreement which consent shall not to be unreasonably withheld, conditioned or delayed), each Waitr Party shall (xi) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a))practice, (yii) each of the Azur Group Entities will use commercially reasonable efforts to maintain the business, properties, physical facilities and operations of each Waitr Party, preserve intact the current business organization of the Waitr Parties, keep available the services of the current officers, key employees and agents of each Waitr Party and maintain existing the relations and goodwill with Governmental Authorities, employeessuppliers, customers, brokerslessors, suppliers and other Persons with which any of licensors, (iii) take the Azur Group Entities has significant business relations actions set forth on Schedule 6.1 and (ziii) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not tonot, directly or indirectly doindirectly, or commit to do, effect any of the following:
(a) make any change in or amendment to its Organizational Documents;
(b) (i) declaremake, accrue, set aside declare or pay any dividend or make distribution to Waitr Stockholders in their capacities as stockholders (which expressly shall not include any other distribution in respect repurchases of any shares of capital stock Waitr Capital Stock from employees or other securitiesservice providers pursuant to the express terms of repurchase rights contained in written agreements with such service providers), or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) effect any recapitalization, reclassification, split or other change in its capitalization or (iii) authorize for issuance, issue, deliversell, transfer, pledge, encumber, sell dispose of or authorize to sell deliver any additional shares of its capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such or exchangeable for shares of its capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of its capital stock or (other equity interests, or any rights, warrants or options to acquire any such than the issuance of shares of capital stock or other equity interests, except with respect to Waitr Common Stock upon the exercise of Azur Options any Waitr Option outstanding prior to on the date of this AgreementAgreement or assign or transfer any of its repurchase rights with respect to shares of Waitr Common Stock held by any employee or former employee, in each case as disclosed on Schedule 4.6(b)), or split, combine or reclassify any shares of its capital stock;
(iiic) amend enter into, assume, assign, partially or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or completely amend any terms material term of, modify any material term of or voluntarily terminate (excluding any expiration in accordance with its terms) any Material Contract, any lease related to the outstanding securities of Leased Real Property or any Azur Group Entitycollective bargaining or similar agreement to which any Waitr Party is a party or by which it is bound, other than entry into such agreements in the ordinary course consistent with past practice;
(ivd) effect or become incur any Indebtedness (other than (i) a party to any Contract relating to a Competing Transaction Working Capital Line of Credit and (ii) accounts payable and accrued liabilities in the ordinary course of business consistent with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Personpast practice);
(ve) sell, lease, license, assignpermit to lapse, transfer, abandon, convey abandon or otherwise dispose of any assetsof its properties or assets that are material to its business, securities, rights except for sales or property dispositions of items or materials in an amount not in excess of $100,000 in the aggregate;
(f) (i) grant or agree to grant to any employee or other independent contractor of any Azur Group EntityWaitr Party, who has annual compensation in excess of $100,000, any increase in wages or bonus, severance, profit sharing, retirement, insurance or other than in each case (A) sales compensation or benefits except for annual cost of inventory and equipment living increases in the ordinary course of business and consistent with past practicespractice, or (ii) adopt or establish any new compensation or employee benefit plans or arrangements, or amend, terminate, or agree to amend or terminate any existing Waitr Benefit Plans, or (iii) except with respect to the acceleration of the Waitr Options held by the persons set forth on Schedule 4.22, accelerate the time of payment, vesting or funding of any compensation or benefits under any Waitr Benefit Plan (including any plan or arrangement that would be a Waitr Benefit Plan if it was in effect on the date hereof), or (iv) make or agree to make any bonus or incentive payments to any individual outside of the currently effective bonus plan as has been made available to Landcadia, or (v) enter into any new collective bargaining agreement or employment, consulting or other compensation agreement (A) for which the annual compensation to be paid is greater than $100,000 or (B) that is not individually terminable upon notice and without liability to any Waitr Party, except (1) as may be required under applicable Law, (2) as required pursuant to Waitr Benefit Plans in excess accordance with their existing terms as in effect on the date hereof, (3) for payment of $500,000any accrued or earned but unpaid compensation, or (4) pursuant to employment, retention, change-of-control or similar type Contracts existing as of the date hereof, provided to Landcadia prior to the date hereof and set forth on Schedule 4.15(a) or (vi) modify in any respect the terms of any existing employment, consulting or other compensation agreement or (vi) make any change to the key management structure of the Waitr Parties, including the hiring and firing of additional officers or termination of existing officers (other than for “cause”);
(vig) incur (a) make, change or rescind any IndebtednessTax election, (b) settle or compromise any claim, notice, audit report or assessment in respect of Taxes, (c) change any Tax period, (d) adopt or change any method of Tax accounting, (e) file any amended Tax Return or claim for a Tax refund, (f) surrender any right to claim a refund of Taxes, (g) enter into any new Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, pre-filing agreement, advance pricing agreement, cost sharing agreement, or amend existing facilities relating closing agreement related to Indebtednessany Tax, issue or sell (h) request any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesTax ruling from a competent authority;
(viih) cancel or forgive any Indebtedness owed to any Waitr Party;
(i) except as may be required by applicable Law or GAAP, make any material change in the financial or tax accounting methods, principles or practices of any Waitr Party (or change an annual accounting period);
(j) unless required by applicable Law, (i) enter into any collective bargaining agreement, works council agreement or any other labor-related Contract with any labor union, labor organization or works council, or (ii) recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any employees of the Waitr Parties;
(k) implement any employee layoffs that would, independently or in connection with any layoffs occurring prior to the date hereof, implicate the Worker Adjustment and Retraining Notification Act of 1988, as amended;
(l) grant or otherwise create or permit consent to the creation of any Lien (other than a Permitted Lien) on any of its material assets or Leased Real Property;
(m) make any material change to any of the assets cash management practices of the Waitr Parties, including materially deviating from or materially altering any of its practices, policies or procedures in paying accounts payable or collecting accounts receivable;
(n) make any material change to the marketing strategy of the Waitr Parties (it being understood that implementation of television advertising pursuant to agreements with strategic partners in effect as of the date of this Agreement shall not be considered to be a material change to the marketing strategy of the Waitr Parties);
(o) make any change to any tip-pooling arrangement or to any practices of any Azur Group Entities Waitr Party with respect to tips and gratuities as in effect as of the date hereof, unless required by applicable Law;
(p) waive, release, compromise, settle or satisfy any pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Action) or compromise or settle any liability, other than in the ordinary course of business and consistent with past practicesor that otherwise do not exceed $100,000 individually or $200,000 in the aggregate;
(viiiq) make or incur any capital expenditures, except for capital expenditures (A) in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), B) other than as required by Lawcapital expenditures in an amount not to exceed $100,000 individually or $200,000 in the aggregate;
(ixr) except (i) fail to the extent required maintain its existence or acquire by the terms of any Benefit Plan merger or any Contract with an Independent Contractor consolidation with, or consultant (merge or similar relationship) of any Azur Group Entity existing as consolidate with, or purchase substantially all of the date of this Agreement assets of, any corporation, partnership, association, joint venture or adopted other business organization or entered into after the date of this Agreement without violation of this Section 5.4(a): division thereof, (Aii) make any new grant acquisition of any assets, business, stock or awardother properties in excess of $100,000 individually or $200,000 in the aggregate, (iii) sell, transfer, license, assign or otherwise dispose of or encumber any of the material assets or Intellectual Property pertaining to the business of any Waitr Party with a value in excess of $200,000, or vest, accelerate acquire any assets in excess of $200,000 or otherwise amend any existing grant, benefit (iv) adopt or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or of any Waitr Party (Bother than the Merger);
(s) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control that restricts the ability of any Azur Group Entity;
(xvi) renew Waitr Party to engage or compete in any line of business, or enter into any Contract with any non-compete or exclusivity provisions agreement that would contractually restrict or limit restricts the operations ability of any Azur Group Entity in any material respectWaitr Party to enter a new line of business;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(At) make any change in loans or advances to any annual accounting period or adopt or change a method of accounting for Tax purposesPerson, except as required by applicable Law, (B) make for advances to employees or change officers of any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made Waitr Party in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datepractice;
(xxiiiu) lend money fail to maintain, cancel or materially change coverage under any person (except for business expenses Insurance Policy in form and amount equivalent in all material respects to the insurance coverage currently maintained with respect to each Waitr Party and its current employees in the ordinary course of business assets and consistent with past practices) or guarantee the indebtedness of any Person;properties; and
(xxivv) make authorize any capital expendituresof, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit or agree to do take any of, the foregoing actions in respect of which it is restricted by the foregoingprovisions of this Section 6.1.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during From the Pre-date of this Agreement until the Closing Period(or until the earlier termination of this Agreement in accordance with Section 7.01), except as expressly required by applicable Law, as set forth in Section 5.4 of the Azur Disclosure Scheduleon Schedule 4.01, as specifically contemplated in Schedule 1, as by or required by to implement this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed waived or consented to in writing by Jazz Purchaser (such agreement which consent, in the case of Section 4.01(m), shall not to be unreasonably withheld, conditioned or delayed), Seller shall cause the Company and its Subsidiaries to:
(xa) each of the Azur Group Entities shall conduct its business and operations solely carry on their respective businesses in all material respects in the ordinary course of business and consistent with past practices and, to the extent consistent therewith practice;
(and subject to the restrictions set forth in this Section 5.4(a)), (yb) each of the Azur Group Entities will use commercially reasonable efforts to maintain and preserve intact the goodwill of their respective businesses and maintain existing relations the relationships of the Company and goodwill its Subsidiaries with Governmental Authorities, employees, their customers, brokerssuppliers, suppliers distributors, contract manufacturers and other Persons with which landlords;
(c) not amend Organizational Documents of the Company or any of the Azur Group Entities has significant business relations and (z) subject its Subsidiaries or take any action with respect to applicable Law as agreed in good faith by counsel to Jazzany such amendment or any recapitalization, Azur shall not and shall cause each reorganization, restructuring, consolidation, merger, complete or partial liquidation, winding up or dissolution of the Azur Group Entities Company or any of its Subsidiaries;
(d) not toauthorize, directly issue, redeem, split, pledge, encumber, sell or indirectly dootherwise dispose of any shares of capital stock, units, membership, or commit other equity or profit interests of any kind in the Company (including any warrants, options, convertible or exchangeable securities, subscriptions, rights (including any pre-emptive or similar rights), calls or other rights to dopurchase or acquire any capital stock, units, membership, or other equity or profit interests of any kind in the Company or any of its Subsidiaries) or enter into any agreement with respect thereto or make any changes (by recapitalization, reclassification, stock dividend, stock split, combination, reorganization or otherwise) in the following:capital structure of, the Company or any of its Subsidiaries;
(ie) not declare, accrue, set aside or pay any dividend or make any other distribution (other than dividends or other distributions payable solely in cash) in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of the capital stock or other equity interests, interests of the Company or any rights, warrants of its Subsidiaries or options to acquire make any such shares distribution of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior property to the date Seller or its Affiliates (other than to the Company or any of this Agreementits Subsidiaries);
(iiif) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or not make any investment commitments to or commence or continue any acquisition of or investment, including loans, advances or capital contributions, in any equity securities of any other Person, including any joint venture, or acquire the stock or all business enterprise or substantially all of the assets or rights any equity of any other Person business enterprise by the Company or any division of its Subsidiaries involving the payment by the Company or any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property the Subsidiaries of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually an amount in excess of $500,000, in each case, other than with respect to the Company or its Subsidiaries or, with respect to cash capital contributions actually made prior to the Closing Date, the Joint Venture;
(vig) incur not make any Indebtednesschange in accounting methods, enter into any new principles or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than except as may be required by GAAP or applicable Law;
(ixh) except not (1) establish or adopt any new material employee benefit plan, terminate any existing Plan or amend any existing Plan in any material respect, (2) other than as reasonably necessary to fill vacancies, increase or grant any new compensation or benefits to, or enter into or amend any employment, retention, severance, termination or similar agreement with, any of its current or former employees, directors or individual independent contractors, or (3) accelerate the extent required by the terms timing of payment or vesting of any Benefit Plan payments or benefits to any current or former employees, directors or individual independent contractors except, in each case, as required under applicable Law or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing Plan in effect as of the date of this Agreement and previously made available to the Purchaser or adopted or entered into after the date as provided in Section 4.08 of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group EntityAgreement;
(xi) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severancenot (1) sell, termination lease, transfer or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director otherwise dispose of any Azur Group Entity;
(xi) terminate any employee other than for cause (assets or properties having a value per transaction in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed excess of $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract250,000, other than in the ordinary course of business and consistent with past practices and that does not require practice, (x2) a term write off, forgive, waive or otherwise cancel, in excess of one year whole or in part, any material account receivable (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposesintercompany receivables), except as required by GAAP or applicable Law, (B3) make write off, forgive, waive or otherwise cancel, in whole or in part, any other material Liability (other than intercompany Liabilities), except as required by GAAP or applicable Law, or (4) acquire any material asset or material property other than in the ordinary course of business;
(j) not (1) make, change or revoke any material Tax electionelection (it being understood and agreed that any entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) to be classified as an association taxable as a corporation is material), (C2) amend any material Tax Return, (3) file or amend any material Tax Return or unless such Tax Return shall have been prepared consistent with past practice, (D4) enter into any closing agreement pursuant to Section 7121 of the Code (or any similar provision of applicable Law) or any Tax sharing, allocation or indemnity agreement, (5) settle or compromise any Tax claim claim, liability or assessment relating to any Taxes involving amounts in excess of the Azur Group Entities$500,000, (6) surrender any right to claim a refund of material Taxes, or consent to any extension or waiver of the limitation period applicable to (7) obtain any Tax claim ruling;
(k) not enter into, assume, assign, cancel, terminate, renew, modify, release or assessment relating to amend any Azur Group Entity Lease, Material Contract, or contract that would be a Material Contract or a Lease if in effect on the date hereof, or assign, compromise, release or waive any rights thereunder;
(in each case l) not make any capital expenditures other than electionspursuant to the Company’s capital expenditure budget, filings, settlements, closing agreements, extensions a copy of which has been made available to Purchaser prior to the date hereof or waivers made otherwise in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datebusiness;
(xxiiim) lend money not settle or compromise any Action (including any permit appeal, consent decree or modification or amendment to any person (except for business expenses to its current employees a consent decree) involving an amount individually or in the ordinary course aggregate in excess of business and consistent with past practices) $2,000,000 or guarantee the indebtedness imposition of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of injunctive or equitable relief against the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree Company or commit to do any of the foregoingSubsidiaries, including those Actions listed on Schedule 4.01(m); and
(n) not authorize any of, or commit or agree to take any of the foregoing actions.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Steel Dynamics Inc)
Conduct of the Business. Azur agreesDuring the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to ARTICLE VII and the Closing Date, except as to itself otherwise expressly provided in this Agreement, Visant will, and its will cause Xxx Xxxxxxxx and the Transferred Subsidiaries to, maintain the corporate existence of Xxx Xxxxxxxx and the Transferred Subsidiaries, thatconduct the respective businesses and operations of Xxx Xxxxxxxx and the Transferred Subsidiaries and the Business in the Ordinary Course (including the collection of receivables and the payment of payables) and make all reasonable best efforts to preserve intact such businesses and operations and the Business’s relationships with customers, during vendors, agents, employees and other Persons with whom they have business relations. Without limiting the Pre-Closing Periodgenerality of the foregoing, except as expressly provided in this Agreement (including actions taken pursuant to the Reorganization Transactions), required by the terms of any written Contracts to which Xxx Xxxxxxxx or any of the Transferred Subsidiaries is a party or by the current arrangement with Savvis Communications Corporation, by Law, including under an Order, or in Section 5.1 of the Visant Disclosure Schedule, prior to the earlier of the termination of this Agreement pursuant to ARTICLE VII and the Closing Date, Visant covenants that it will not, and will cause its Affiliates not to, with respect to Xxx Xxxxxxxx and the Transferred Subsidiaries and the Business, without the prior written consent of Buyer, which consent will not be unreasonably withheld:
(a) merge or consolidate Xxx Xxxxxxxx or any of the Transferred Subsidiaries with any other Person, cause Xxx Xxxxxxxx or any of the Transferred Subsidiaries to acquire any operation, business or assets having a value in excess of $250,000 in the aggregate from any other Person (other than (i) inventory and supplies in the Ordinary Course or (ii) capital expenditures committed to as of the date hereof as set forth in Section 5.4 5.1(a) of the Azur Visant Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheldrestructure, conditioned reorganize or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which completely or partially liquidate Xxx Xxxxxxxx or any of the Azur Group Entities has significant business relations and Transferred Subsidiaries;
(zb) subject to applicable Law as agreed in good faith by counsel to Jazzissue, Azur shall not and shall cause each sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any equity securities of Xxx Xxxxxxxx or any of the Azur Group Entities not toTransferred Subsidiaries;
(c) make any loans, advances or capital contributions to or investments in any Person;
(d) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly do, or commit to doindirectly, any of the following:Xxx Xxxxxxxx’x capital stock;
(i) declareamend or modify any Material Contract with a customer in any material respect in a manner adverse to Xxx Xxxxxxxx and the Transferred Subsidiaries or the Business, accrue, set aside (ii) amend or pay modify any dividend Material Contract that is not with a customer in any material respect or make any other distribution in respect of any shares of capital stock a manner adverse to Xxx Xxxxxxxx and the Transferred Subsidiaries or other securitiesthe Business, or repurchase(iii) terminate any Material Contract prior to its scheduled expiration, redeem waive any material rights, claims or otherwise acquire obligations under or relating to any shares of capital stock or other securities ofMaterial Contract, or other ownership interests incancel, modify or waive any Azur Group Entitydebts or claims held by it thereunder, or waive any rights having in the aggregate a value in excess of $250,000 thereunder;
(iif) issueenter into any Contract containing a “non-compete”, deliver“non-solicitation”, pledge“most favored nation”, encumber, sell “exclusivity” or authorize any other provision that would be likely to sell have any shares such similar effects that would restrict Xxx Xxxxxxxx or any of capital stock of or other equity interests its Affiliates after the Closing;
(g) accelerate in any Azur Group Entitymaterial respect the delivery or sale of products or services or, or other than in the Ordinary Course, make changes in any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except material respect with respect to exercise any selling, service-level, credit or product/service discount principles, practices, methods or policies;
(h) other than in the Ordinary Course with respect to Contracts with customers or suppliers (and in the case of Azur Options outstanding suppliers, so long as such Contract is terminable by Xxx Xxxxxxxx or any Transferred Subsidiary on 60 days’ or less notice and without cost), enter into any Contract that would have been a Material Contract had it been entered into prior to the date of this Agreement;
(iiii) amend, modify in any material respect or terminate any Insurance Policy or waive any material rights, claims or obligations under or relating to any Insurance Policy;
(j) enter into any Contract that would have been subject to disclosure pursuant to Section 3.24 had it been entered into prior to the date of this Agreement;
(k) enter into, amend or modify any labor Contracts (other than oral Contracts that are immaterial), collective bargaining agreements, letters of understanding or other arrangements with any union or labor organization covering any Employees;
(l) accelerate in any material respect or otherwise alter (or propose in any amendment or alteration to) material respect the Governing Documents timing of the payment of any Azur Group Entity accounts receivable of Xxx Xxxxxxxx or amend any terms of the outstanding securities Transferred Subsidiaries or delay in any material respect the payment of any Azur Group EntityAccounts Payable or accrued expenses of Xxx Xxxxxxxx or any of the Transferred Subsidiaries;
(ivm) sell, assign, transfer, convey, lease, license, pledge, mortgage, surrender, divest, cancel, allow to lapse or expire, abandon, encumber or otherwise dispose of any assets of Xxx Xxxxxxxx, the Transferred Subsidiaries or the Business that have a fair market value that is in excess of $250,000, in the aggregate, including capital stock, other than in the Ordinary Course;
(n) except as provided pursuant to existing written, binding Contracts or Benefit Plans in effect prior to the date of this Agreement and set forth in Section 5.1(n) of the Visant Disclosure Schedule, or become a party as otherwise required by applicable Law, (i) grant or provide any severance or termination payments or benefits to any Contract relating to a Competing Transaction with respect to each Azur Group Entitydirector or officer or Employee of Xxx Xxxxxxxx or any of the Transferred Subsidiaries, recapitalization(ii) increase the annual cash compensation (by an amount greater than 2.5% thereof), reclassification of sharesbonus or pension, stock splitwelfare, reverse split severance or similar transaction with respect to each Azur Group Entityother benefits of, pay any bonus to, or make any investment new equity awards to any director, officer or Employee of Xxx Xxxxxxxx or any of the Transferred Subsidiaries, (iii) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any equity securities other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit 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 (vi) forgive any loans to directors, officers or Employees of Xxx Xxxxxxxx or any of the Transferred Subsidiaries;
(o) terminate any lease with respect to Real Property or enter into, amend or renew any such lease;
(p) amend, modify or alter the terms of the Xxx Xxxxxxxx Indebtedness;
(q) incur any Indebtedness or guarantee any Indebtedness of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities security of Xxx Xxxxxxxx or guarantee any debt securitiesof the Transferred Subsidiaries;
(viir) create or permit the creation incur any Encumbrances on any assets or properties of any Lien (other than a Permitted Lien) on Xxx Xxxxxxxx or any of the assets of any Azur Group Entities Transferred Subsidiaries or the Business other than in Permitted Encumbrances (except for clause (g) of the ordinary course definition of business and consistent with past practicesPermitted Encumbrances);
(viiis) except as set forth in the ordinary course capital budgets set forth in Section 5.1(s) of business the Visant Disclosure Schedule and consistent with past practicestherewith, enter into make, authorize or adopt incur any newcapital expenditures or commitments for capital additions or improvements under which payment or expenditure obligations exceed $250,000 in the aggregate;
(t) pay, prepay, settle, discharge or amend or terminate satisfy any existing, Benefit Plan (including any trust or other funding arrangement)Liability of more than $150,000, other than as required by Lawset forth in Section 5.1(t) of the Visant Disclosure Schedule;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xu) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severancesettlement, termination concession, conciliation or similar paymentagreement (i) involving payment or receipt of payment after the execution of this Agreement of consideration in excess of $150,000 in any individual case, or any bonus or similar payment (other than payment $250,000 in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz)the aggregate, or hire any employee, (ii) on a basis that would result in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan the imposition of complete any order, writ, judgment, injunction, indictment, demand, decree, stipulation, determination or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization award by any Governmental Entity that would restrict in any material respect the future activity or other reorganization conduct of Xxx Xxxxxxxx or any of the Transferred Subsidiaries or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result an admission of a change violation of control Law or violation of the rights of any Azur Group EntityPerson by Xxx Xxxxxxxx or any of the Transferred Subsidiaries;
(xviv) renew amend the certificate of incorporation, bylaws, or such comparable governing documents of Xxx Xxxxxxxx or any of the Transferred Subsidiaries;
(w) issue, amend the terms of, declare, set aside, make or pay any dividends or make any other payment or distribution of any kind with respect to, any of Xxx Xxxxxxxx’x or any Transferred Subsidiaries’ equity securities or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit respect to the operations voting of any Azur Group Entity in any material respectsuch equity securities;
(xviix) (A) enter intomake any changes in accounting methods, policies, procedures, principles or permit any of the assets owned or used practices unless required by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material ContractGAAP;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by change its method of Tax accounting or make or change any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filingmaterial Tax election, commence or settle or compromise finally resolve any litigation, or waive, release, relinquish or assign any material claims or material rights, including Tax contest with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method material amount of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionTax; or
(xxvz) agree agree, authorize or commit commit, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement
Conduct of the Business. Azur agreesFrom the date hereof until the Closing Date, as Seller shall, and shall cause its Subsidiaries to, conduct the Business in the ordinary course consistent with both past practices and standard industry practices and shall use best efforts to itself preserve intact their business organizations and its Subsidiaries, that, during relationships with third parties and to keep available the Pre-Closing Period, except as set forth in Section 5.4 services of the Azur Disclosure Schedulepresent officers, as contemplated in Schedule 1employees and consultants of the Business. Without limiting the generality of the foregoing, as required by this Agreement or from the Related Agreementsdate hereof until the Closing Date, as reasonably necessary to effect the Reorganization (subject to Seller shall not, and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) shall cause each of the Azur Group Entities shall conduct its business Subsidiaries not to:
(a) adopt or propose any change in their corporate charter or bylaws;
(b) merge or consolidate with any other Person or acquire a material amount of assets of any other Person;
(c) sell, lease, license or otherwise dispose of any material assets or property except (i) pursuant to existing contracts or commitments and operations solely (ii) in the ordinary course of business and consistent with past practices andpractices;
(d) effect any direct or indirect redemption, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each purchase or other acquisition of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any Equity Securities of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly Seller or indirectly doits Subsidiaries, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of assets of any shares kind whatsoever with respect to any Equity Securities of capital stock Seller or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entityits Subsidiaries;
(iie) issue, deliver, pledge, encumber, sell issue any Equity Securities of Seller or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreementits Subsidiaries;
(iiif) amend incur any indebtedness for money borrowed, make any loans or advances, assume, guarantee or endorse or otherwise alter (or propose any amendment or alteration to) become responsible for the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities obligation of any other Person, including or, except as necessary to maintain the Business, subject any joint ventureof its properties or assets to any Lien, or acquire which Liens shall be removed in any event prior to the stock or all or substantially all of the assets or rights of any other Person or any division of any other PersonClosing;
(vg) sellenter into any commitment, leasecontract, licenserenewal or arrangement that would create any performance or other obligation, assignfixed or contingent, transferon the Business, abandonBuyer, convey SVT or otherwise dispose any of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000Purchased Assets following the Closing;
(vih) incur terminate or otherwise layoff any Indebtedness, enter into any new employees of or amend existing facilities relating consultants to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesthe Business;
(viii) create make any change in the compensation paid or permit the creation of payable to any Lien (other than a Permitted Lien) on any officer, member, manager, director, shareholder, employee, agent, representative or consultant of the assets of Business, or pay or agree to pay any Azur Group Entities other than bonus or similar payment;
(j) make any intra-company payments that materially impacts Net Assets or Working Capital;
(k) make any change in the ordinary course of business and consistent product pricing or employ sales practices or procedures that are inconsistent with past practices;
(viiil) except in the ordinary course change its method of business and consistent with past practices, enter into management or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxvm) agree or commit to do any of the foregoing. Seller shall not, and shall cause its Subsidiaries not to, (i) take or agree or commit to take any action that would make any representation and warranty made by Parent and Seller under this Agreement inaccurate in any respect at, or as of any time prior to, the Closing Date or (ii) omit or agree or commit to omit to take any action necessary to prevent any such representation or warranty from being inaccurate in any respect at any such time.
Appears in 1 contract
Samples: Asset Purchase Agreement (Conversion Services International Inc)
Conduct of the Business. Azur agrees(a) The Company will, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements)Sellers will cause the Company to, or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, prior to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the followingClosing:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entitymaintain its corporate existence;
(ii) issueuse all reasonable efforts to preserve its business organization intact, deliverretain its permits, pledgelicenses and franchises, encumberpreserve the existing contracts and goodwill of its customers, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entitysuppliers, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except personnel and others having business relations with respect to exercise of Azur Options outstanding prior to the date of this Agreementit;
(iii) amend or otherwise alter (or propose any amendment or alteration to) conduct its business only in the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;ordinary course; and
(iv) effect use all reasonable efforts to operate in such a manner as to assure that the representations and warranties of the Sellers set forth in this Agreement will be true and correct as of the Closing Date. Gemini Stock Purchase Agreement Final Version - June 3, 1998 - 8 p.m. ds1/408849-8
(b) The Company will not, and the Sellers will cause the Company to not, prior to the Closing, without the Purchaser's prior written consent, which shall not be unreasonably withheld or become a party to delayed:
(i) change its method of management or operations in any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification material respect;
(ii) dispose of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, acquire any material assets or properties or make any investment in any equity securities of any other Personcommitment to do so, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practicesbusiness;
(viiiiii) except in incur any indebtedness for borrowed money, make any loans or advances, assume, guarantee or endorse or otherwise become responsible for the ordinary course obligation of business and consistent with past practices, enter into any other person or adopt any newentity, or amend subject any of its properties or assets to any lien, security interest or encumbrance;
(iv) modify, amend, cancel or terminate any existingMaterial Contract or any other existing agreement material to the Company or its Business, Benefit Plan (including the making of any trust or other funding arrangement), other than as required by Lawprepayment on any existing obligation;
(ixv) make any change in the compensation paid or payable to any officer, director, employee, agent, representative or consultant of the Company as shown on Schedule 2.21, except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or awarddisclosed on Schedule 2.21, or vest, accelerate pay or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable agree to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment bonus payments to which any Company is committed, and which are disclosed in respect of base salarythis Agreement), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xivi) terminate make any employee dividend or distribution, redemption, recapitalization or other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000transaction involving the capital stock of the Company;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiiivii) enter into any new collective bargaining agreement contract or agreement with a trade union;
(xiv) contribute respect to which the Company has any material amount to any trust liability or other arrangement funding any Benefit Planobligation involving more than $10,000, except to the extent required by the existing terms of such Benefit Plan, trust contingent or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreementotherwise, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into which may otherwise have any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit continuing effect after the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any ContractClosing, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigationbusiness, or waive, release, relinquish or assign which may place any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a limitation on the method of accounting for Tax purposes, except as required by applicable Law, (B) make conducting or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any scope of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionBusiness; or
(xxvviii) agree take any other action which would have a Material Adverse Effect or commit to do any would adversely affect or detract from the value of the foregoingCompany, its assets or the Business.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during (a) From the Pre-Closing Perioddate hereof until the Effective Time, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as expressly contemplated in Schedule 1, as required or permitted by this Agreement or Additional Agreements or as required by applicable Law (including for this purposes any COVID-19 measures), each party shall, and shall cause its Subsidiaries to, (A) conduct their respective business only in the Related Agreementsordinary course consistent with past practice in all material respects, and (B) use its reasonable best efforts to preserve intact its assets, keep available the services of its current officers and key employees and maintain in all material respects its current relationships with suppliers, customers and other third parties with which it has material business relations. Without limiting the generality of the foregoing, except as reasonably necessary to effect the Reorganization (subject to and in accordance with expressly contemplated or permitted by this Agreement and the Related Agreementsor Additional Agreements or as required by applicable Law (including for this purposes any COVID-19 measures), or as otherwise agreed to in writing by Jazz from the date hereof until the Effective Time, without the prior written consent of the other party (provided that (y) such agreement written consent shall not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject such other party shall respond to applicable Law such request for written consent as agreed in good faith by counsel soon as practicable and such written consent shall be deemed given if such other party does not respond to Jazzsuch request with three (3) Business Days after the receipt of the request), Azur each of the Company and the Parent shall not not, and shall cause each of the Azur Group Entities its Subsidiaries not to, directly or indirectly do, or commit to do, any of the following:
(i) declareamend, accruemodify or supplement its Organizational Documents other than pursuant to this Agreement;
(ii) adjust, set aside split, combine, subdivide, recapitalize, reclassify or pay otherwise effect any dividend or make any other distribution change in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any voting securities convertible into any such shares of capital stock or the Company other equity interests, or any rights, warrants or options than pursuant to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend modify, amend, enter into, consent to the termination of, or otherwise alter waive any material rights under, any Material Contract (or propose any amendment or alteration to) Contract that would be a Material Contract if such Contract has been entered into prior to the Governing Documents date hereof), except for in ordinary course of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entitybusiness consistent with past practice;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment capital expenditures in any equity securities excess of any other PersonUS$5,000,000 (individually or in the aggregate), including any joint venture, or acquire the stock or all or substantially all except for in ordinary course of the assets or rights of any other Person or any division of any other Personbusiness consistent with past practice;
(v) sell, transfer, lease, license, assigngrant or incur any Lien on, transfer, abandon, convey or otherwise dispose of any assetsof the Company Group’s assets or Intellectual Property Rights, securities, rights or property of any Azur Group Entity, other than in each case (A) except sales of inventory and equipment products to customers in the ordinary course of business and consistent with past practicespractice and not exceeding US$5,000,000;
(vi) pay, declare or promise to pay any dividends or other distributions with respect to its share capital, or pay, declare or promise to pay any other payments to any shareholder (other than, in the case of any shareholder that is an employee, payments of salary accrued in said period at the current salary rate), except for in connection with the Restructuring (defined in Section 7.3) in which case no written consent would be required;
(vii) (A) grant, accelerate or amend the terms of any equity awards to any employee of the Company Group or to any person except for grant or accelerate the Company RSUs under the Company Plan, or (B) not individually in excess of $500,000;
(vi) incur establish, adopt, amend or terminate the Company Plan or any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit equity incentive plan except the creation of any Lien (other than a Permitted Lien) on any termination of the assets Company Plan and the adoption of any Azur Group Entities other than in the ordinary course 2021 Equity Incentive Plan of business and consistent with past practicesParent as contemplated by this Agreement;
(viii) obtain or incur any loan or other Indebtedness in excess of US$5,000,000, or assume, guarantee or otherwise become responsible for the obligations of any Person for Indebtedness, except for in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Lawpractice;
(ix) except to the extent required by the terms commence, settle, release, waive or compromise any Action of or against any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as member of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): Company Group (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Planfor an amount in excess of US$5,000,000, (B) increase that would impose any material restrictions on the compensation payable to any Employee, Independent Contractor, consultant (business or similar relationship) or director operations of any Azur Group Entity member of the Company Group, or (C) pay any severance that is brought by or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director on behalf of any Azur current, former or purported holder of any share capital or other securities of any member of the Company Group Entity;
(x) relating to the Acquisition Merger; adopt or enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entitymember of the Company Group;
(xvix) renew acquire, whether by purchase, merger, spin off, consolidation, scheme of arrangement, amalgamation or enter into acquisition of shares or assets, any Contract assets, securities or properties, in aggregate, with any non-compete a value or exclusivity provisions that would contractually restrict or limit the operations purchase price in excess of any Azur Group Entity US$5,000,000 in any material respecttransaction or related series of transactions;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a)fail to maintain in full force and effect material insurance policies covering the Company Group and its properties, or (B) modify assets and businesses in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business a form and amount consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(Axii) make any change in any annual its accounting period principles or adopt or change a method methods of accounting for Tax purposesaccounting, except other than as may be required by the applicable accounting principles or applicable Law;
(xiii) issue, sell, transfer, pledge, dispose of, place any Lien, redeem or repurchase any shares or other equity or voting securities of any member of the Company Group, or issue or grant any securities exchangeable for or convertible into any shares or other equity or voting securities of any member of the Company Group;
(Bxiv) make make, change or change revoke any material Tax election, (C) file or amend any Tax Return or (D) Return, enter into any closing agreement, settle agreement or seek any Tax claim or assessment relating ruling from any Authority with respect to any of the Azur Group Entitiesmaterial Taxes, surrender any right to claim a material refund of Taxes, settle or consent finally resolve any material controversy with respect to any Taxes, agree to an extension or waiver of the limitation period applicable statute of limitations with respect to the assessment or determination of material Taxes, change any method of Tax accounting or Tax accounting period, initiate any voluntary Tax disclosure to any Tax claim Authority, or assessment relating to incur any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in material amount of Taxes outside of the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionbusiness; or
(xxvxv) agree or commit undertake any legally binding obligation to do any of the foregoing.
(b) From the date hereof through the Closing Date, Parent shall remain a “blank check company” as defined under the Securities Act, shall not conduct any business operations other than in connection with this Agreement and ordinary course operations to maintain its status as a Nasdaq-listed special purpose acquisition company pending the completion of the transactions contemplated hereby. Without limiting the generality of the foregoing, through the Closing Date, other than in connection with the transactions contemplated by this Agreement, without the other party’s prior written consent (which shall not be unreasonably withheld), Parent shall not, and shall not cause its Subsidiaries to amend, waive or otherwise change the Investment Management Trust Agreement in any manner adverse to Parent.
(c) Neither party shall (i) take or agree to take any action that might make any representation or warranty of such party inaccurate or misleading in any material respect at, or as of any time prior to, the Closing Date or (ii) omit to take, or agree to omit to take, any action necessary to prevent any such representation or warranty from being inaccurate or misleading in any material respect at any such time.
(d) From the date hereof through the earlier of (x) termination of this Agreement in accordance with Article XI and (y) the Closing, other than in connection with the transactions contemplated hereby, neither the Company Group, on the one hand, nor Parent Parties, on the other hand, shall, and such Persons shall cause each of their respective officers, directors, Affiliates, managers, consultants, employees, representatives (including investment bankers, attorneys and accountants) and agents not to, directly or indirectly, (i) encourage, solicit, initiate, engage or participate in negotiations with any Person concerning, or make any offers or proposals related to, any Alternative Transaction, (ii) take any other action intended or designed to facilitate the efforts of any Person relating to a possible Alternative Transaction, (iii) enter into, engage in or continue any discussions or negotiations with respect to an Alternative Transaction with, or provide any non-public information, data or access to employees to, any Person that has made, or that is considering making, a proposal with respect to an Alternative Transaction or (iv) approve, recommend or enter into any Alternative Transaction or any Contract related to any Alternative Transaction. For purposes of this Agreement, the term “Alternative Transaction” shall mean any of the following transactions involving the Company Group or the Parent Parties (other than the transactions contemplated by this Agreement): (1) any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, consolidation, liquidation or dissolution or other similar transaction, or (2) any sale, lease, exchange, transfer or other disposition of a material portion of the assets of such Person (other than the sale, the lease, transfer or other disposition of assets in the ordinary course of business) or any class or series of the share capital or capital stock or other equity interests of the Company Group or the Parent Parties in a single transaction or series of transactions.
Appears in 1 contract
Samples: Merger Agreement (Blue Safari Group Acquisition Corp)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during From the Pre-Closing Period, except as set forth in Section 5.4 date hereof until the earlier of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with termination of this Agreement and the Related Agreements)Closing Date, except (i) as set forth on Schedule 5.01 of the Disclosure Schedules, (ii) if Parent shall have consented in writing or (iii) as otherwise agreed to in writing contemplated by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed)this Agreement, (x1) each of the Azur Group Entities Company shall conduct its business business, and operations solely shall cause its Subsidiaries to conduct their business, in the ordinary course of business and consistent with past practices and, practice; provided that the Company may use available cash to repay any Indebtedness on or prior to the extent consistent therewith Closing; (2) the Company shall, and subject to the restrictions set forth in this Section 5.4(a))shall cause its Subsidiaries to, (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve intact their businesses, their assets and maintain existing relations and goodwill their relationships with Governmental Authorities, employees, customers, brokers, suppliers and other Persons others having business dealings with them in all material respects, and keep available the services of their present officers and significant employees and (3) the Company shall not, and shall not permit any of its Subsidiaries to:
(a) except for issuances as may result from (i) the exercise of Options or Warrants or the conversion of Preferred Stock, (ii) replacement certificates for shares of Company Stock and (iii) new certificates for shares of Company Stock in connection with a transfer of Company Stock by the holder thereof, issue, sell, grant or deliver any of its or any of its Subsidiaries' equity securities or issue, sell or grant any securities convertible into, or options or rights with respect to, or warrants to purchase or rights to subscribe for, any of its or any of its Subsidiaries' equity securities;
(b) except for the cancellation of the Options and Warrants in accordance with this Agreement or pursuant to the terms of the Contract governing the Option or Warrant (which Contract is set forth on Schedule 3.04(b)), redeem, repurchase or otherwise acquire, any equity securities of the Company;
(c) effect any recapitalization, reclassification, equity split, combination or like change in its capitalization;
(d) amend its Organizational Documents or any of the Azur Group Entities has significant business relations and Company's Subsidiaries' organizational documents;
(ze) subject to applicable Law as agreed in good faith by counsel to Jazzredeem, Azur shall not and shall cause each of the Azur Group Entities not to, directly purchase or indirectly do, or commit to do, issue any of its or any of its Subsidiaries' equity interests (other than with respect to the following:repurchase of Company Stock (including any Options) from former employees of a Group Company pursuant to existing agreements disclosed to Parent and scheduled pursuant to Article III or the existing requirements of any Company Employee Benefit Plan);
(f) sell, assign or transfer any portion of its tangible assets, except in the ordinary course of business consistent with past practice or except for sales of obsolete assets or assets with de minimis value;
(i) declarepermit the lapse, accrueabandonment, set aside disclaimer, cancellation, forfeiture, failure to maintain, loss of rights, dedication to the public, assignment or pay any dividend sale, in whole or make any other distribution in respect part, of any shares Owned Intellectual Property used in the business of capital stock the Company or other securitiesany of its Subsidiaries; (ii) grant any non-compete, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities ofcovenant not to xxx, or other ownership interests inmaterial restriction on or modification of the current or contemplated operation or scope of its business, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in rights to any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interestsOwned Intellectual Property, except with respect to exercise incidental use rights in Owned Intellectual Property related to products sold to customers of Azur Options outstanding prior the Company or any of its Subsidiaries, or otherwise granted by the Company in the ordinary course of business consistent with past practice; (iii) transfer its ownership rights in any Owned Intellectual Property jointly developed, created or invented with any third party, or Owned Intellectual Property developed, created or invented by any third party on behalf of Company or any of its Subsidiaries; or (iv) disclose any confidential information or Trade Secret to any Person (other than employees and consultants of the date Company or any of this Agreementits Subsidiaries having a need to know that are subject to a confidentiality or non-disclosure covenant protecting against further disclosure thereof), except under non-disclosure obligations or agreements;
(iiii) enter into (including extensions, other than automatic renewals, at the end of a term), transfer, terminate, amend or otherwise alter modify any Material Contract or (ii) waive any material rights, or propose discharge any amendment or alteration to) the Governing Documents other party of any Azur Group Entity material obligation, under any Material Contract; provided that Parent shall not unreasonably withhold, condition or amend any terms of the outstanding securities of any Azur Group Entitydelay its consent to an action described in this Section 5.01(h)(ii);
(ivi) effect or become a party to make any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entitycapital investment in, or make any investment in any equity securities of any other Personloan to, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(vj) sellmake any capital expenditures or commitments therefor, leaseexcept for such capital expenditures or commitments as referenced in any Material Contract;
(k) enter into any agreement with any of its managers, license, assign, transfer, abandon, convey or otherwise dispose officers and employees outside the ordinary course of business except pursuant to the existing terms of any assets, securities, rights or property agreement set forth on the Disclosure Schedules;
(l) except as required under the terms of any Azur Company Employee Benefit Plan as in effect on the date hereof, (i) grant or announce any incentive awards or any increase in the salaries, bonuses or other compensation and benefits payable by a Group EntityCompany to any of its employees, officers, directors or other service providers; (ii) increase or decrease the benefits under any Company Employee Benefit Plan or pay to any individual any amounts under any Company Employee Benefit Plan not otherwise due; (iii) grant any right to receive any change in control, severance, retention or similar compensation to any officer, employee, consultant or other agent of any Group Company; (iv) terminate or amend any Company Employee Benefit Plan or adopt any arrangement for the current or future benefit or welfare of any officer or employee of any Group Company that would be a Company Employee Benefit Plan if it were in existence as of the date hereof (other than in each case offer letters providing for at-will employment without post-termination obligations with newly-hired employees with a base salary lower than One Hundred Forty Thousand Dollars (A$140,000) sales of inventory and equipment who are hired in the ordinary course of business and consistent with past practices, practice or as required by applicable Law); (Bv) not individually enter into any collective bargaining agreement; (vi) hire or terminate any employee with a base salary in excess of One Hundred Forty Thousand Dollars ($500,000140,000); (vii) accelerate the payment timing of any benefits under any Company Employee Benefit Plan; or (viii) provide any funding for any rabbi trust or similar arrangement, or take any other action to fund or secure the payment of any compensation or benefit;
(vim) settle or compromise any Action;
(n) incur any IndebtednessIndebtedness except for immaterial Indebtedness incurred in the ordinary course of business, issue any debt securities or assume, grant, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person;
(o) create or incur any Lien on any Asset, other than Permitted Liens;
(p) make any loan, advance or capital contribution to or investment in any Person;
(q) acquire any real property or any direct interest in any real property;
(r) merge or consolidate with any other Person or effect any business combination, recapitalization or similar transaction (other than the Merger);
(s) make any change to its financial accounting methods, policies or practices or practices with respect to the maintenance of books of account and records, except as required by GAAP or applicable Law;
(t) make, change or revoke any material Tax election, change any material Tax accounting method, file any material amended Tax Return, settle or compromise any audit or other proceeding relating to a material amount of Tax, enter into any new "closing agreement" within the meaning of Section 7121 of the Code (or amend existing facilities relating any similar provision of state, local or non-U.S. Law), apply for or request any Tax ruling, or surrender any right to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesclaim a material Tax refund;
(viiu) create fail to pay or permit satisfy any material account payable or other liability incurred in the creation ordinary course of business consistent with past practice (including in each case, the timing of any Lien (such payments), other than a Permitted Lienany such liability that is being contested by the Company or its Subsidiaries in good faith;
(v) on forgive, cancel or compromise any debt or claim, or waive, release or assign any right or claim of the assets of any Azur Group Entities value, other than in the ordinary course of business and consistent with past practicespractice;
(viiiw) make any payments, other than pursuant to Contracts in effect as of the date hereof and in accordance with the terms thereof or new Contracts approved by Parent, or grant discounts to customers or suppliers, except for one-time customer satisfaction credits or discounts granted in the ordinary course of business and consistent with past practicespractice that are not material, enter into individually or adopt any newin the aggregate, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group EntityCompany and its Subsidiaries;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severancechanges in the management of working capital or materially modify practices with respect to the purchase of inventory, termination collection of receivables and payment of accounts payable, including the writing and mailing of checks or similar payment, or any bonus or similar payment (other than payment in respect initiation of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entitywire transfers;
(xiy) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), adopt or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement a plan or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, its Subsidiaries (other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (vMerger), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxvz) authorize any of, or agree or commit to do any of the foregoingforegoing actions. No exception set forth in Section 5.01 that permits any action or omission to take an action that would otherwise be prohibited under any clause of Section 5.01 shall be deemed to eliminate the need to obtain consent under any other clause of Section 5.01 that is applicable to such action or omission to take an action. Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company's or any of its Subsidiaries' operations prior to the Closing to the extent in violation of applicable Law.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself (a) From the date hereof until the earlier of the termination of this Agreement and its Subsidiaries, that, during the Pre-Closing PeriodDate, except (A) as set forth in Section 5.4 of the Azur Disclosure ScheduleSchedule 6.01, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz B) if Buyer will have consented (such agreement consent not to be unreasonably withheld, conditioned conditioned, or delayed)) or (C) as otherwise expressly contemplated by this Agreement, (x) each of Sellers will cause the Azur Group Entities shall Company and the Subsidiary to conduct its business and operations solely the Business in the ordinary course Ordinary Course of business Business, and consistent with past practices and, Sellers shall cause the Company and the Subsidiary to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve intact the current business organization and ongoing operations of the Company and the Subsidiary, maintain existing relations and goodwill with Governmental Authorities, employeessuppliers, customers, brokerslandlords, suppliers employees and other Persons creditors with which any whom the Company or the Subsidiary has a relationship, perform in all material respects its obligations under the Material Contracts, and maintain the properties and assets of the Azur Group Entities has significant business relations Company and the Subsidiary in their current state of repair and condition (z) subject excluding normal wear and tear). Without Buyer’s consent (such consent not to applicable Law as agreed in good faith by counsel to Jazzbe unreasonably withheld, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly doconditioned, or commit to dodelayed), any of Sellers will not, and will not permit the followingCompany or the Subsidiary to:
(i) declareissue, accrue, set aside sell or pay deliver any dividend of the Company’s or make the Subsidiary’s equity securities or issue or sell any other distribution in respect of any shares of capital stock or other securitiessecurities convertible into, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities ofoptions with respect to, or other ownership interests inwarrants to purchase or rights to subscribe for, any Azur Group Entityof the Company’s or the Subsidiary’s equity securities;
(ii) issuerecapitalize, deliverreclassify, pledgecombine, encumbersplit, sell subdivide or authorize to sell redeem, declare any shares of capital stock of or other equity dividend, purchase or otherwise acquire or otherwise make any change in, directly or indirectly, the Company’s or the Subsidiary’s equity interests in or make any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except change with respect to exercise of Azur Options outstanding prior to the date of this AgreementCompany’s or the Subsidiary’s capital structure;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the its Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group EntityDocuments;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any redemption or purchase of its equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Personinterests;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of create any assets, securities, rights or property of any Azur Group Entity, other than in each case new Subsidiary;
(vi) (A) sales sell, assign or transfer any material portion of inventory and equipment in the ordinary course of business and consistent with past practicesits tangible assets, or (B) not individually in excess mortgage, encumber, pledge, or impose any Encumbrance upon any of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesits assets;
(vii) create incur or permit the creation of guaranty any Lien (other than a Permitted Lien) on Indebtedness, or amend and restate any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practicesexisting Indebtedness;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, mergermerger or consolidation of the Company or the Subsidiary;
(ix) sell, consolidationassign, restructuringtransfer or exclusively license any material Intellectual Property, recapitalization or other reorganization or including any Software;
(Bx) enter into any contract, agreement or exercise arrangement that would be a Material Contract if entered into prior to the date hereof;
(xi) terminate, cause the termination of, amend, renew, modify or extend any discretion providing for acceleration Material Contract in any material respect, or waive or release any rights or claims thereunder;
(xii) fail to pay or otherwise satisfy (except if being contested in good faith) any material accounts payable, liabilities, or obligations when due and payable;
(xiii) directly or indirectly, merge with or into, consolidate with or acquire any material asset out of payment the ordinary course of, make any capital contributions to, or performance investments in, or any advance or loan to, or acquire the securities of, any other Person;
(xiv) make any capital expenditures or commitments therefor other than those reflected in the Company’s or the Subsidiary’s budget as a result of a change the date hereof as listed on Schedule 6.01(a)(xiv) hereto in an amount not to exceed $25,000;
(xv) enter into any other transaction with any of control its directors, officers or employees outside the Ordinary Course of any Azur Group EntityBusiness consistent with past practice;
(xvi) renew except as required under the terms of any Company Employee Benefit Plan as in effect on the date hereof, (i) increase salaries, bonuses or enter into other compensation or remuneration and benefits payable by the Company to any Contract of its employees, officers, directors or other service providers; (ii) increase the benefits provided to any Person under any Company Employee Benefit Plan; (iii) hire or engage the services of any Person with annual base compensation in excess of $80,000; or (iv) terminate or amend any non-compete Company Employee Benefit Plan or exclusivity provisions adopt any new arrangement for the benefit or welfare of any officer or employee, director or other service provider of the Company that would contractually restrict or limit be a Company Employee Benefit Plan if it were in existence as of the operations of any Azur Group Entity in any material respectdate hereof;
(xvii) (A) enter into, or permit settle any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material ContractLegal Proceeding;
(xviii) enter into cancel any Contract, other than in material third-party indebtedness owed to the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year Company or (y) payments by any Azur Group Entity in excess of $500,000 per annumthe Subsidiary;
(xix) other than (A) recognize any labor union or enter into, modify, or amend any collective bargaining agreement or engage in connection any communications with any actual labor union regarding any Party’s anticipated actions on or alleged breach of this Agreement or any Related Agreement or (B) after the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including Closing with respect to any Azur IP Rightssuch union;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures prepare or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (D) including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), file any amended Tax Return, settle or otherwise compromise any claim relating to Taxes, enter into any closing agreementagreement or similar agreement relating to Taxes, otherwise settle any Tax claim or assessment dispute relating to any of the Azur Group EntitiesTaxes, surrender any right to claim a refund of TaxesTax refund, offset or other reduction in Tax liability, or consent request any ruling or similar guidance with respect to Taxes;
(xxi) adopt, amend or terminate any Company benefit plan (including, for avoidance of doubt, any retention bonus plan, transaction bonus plan, change of control plan, or other compensatory plan with respect to any extension employees or waiver consultants of the limitation period applicable Company or the Subsidiary) or otherwise commit to pay any bonuses or other compensation to any Tax claim employees of the Company or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the Subsidiary outside the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionbusiness; or
(xxvxxii) agree agree, whether orally or commit in writing, to do any of the foregoing, or agree, whether orally or in writing, to any action or omission that would result in any of the foregoing.
(b) From the date hereof until the earlier of the termination of this Agreement and the Closing Date, without the prior written approval of Buyer (which approval may be given or denied in Buyer’s sole discretion), Sellers shall not permit the Company or the Subsidiary to, directly or indirectly, declare or pay any dividend on, or make any payment on account of, the purchase, redemption, defeasance, retirement or other acquisition of, any of its capital stock or common shares, as applicable, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property other than a distribution of cash not included in Closing Working Capital.
Appears in 1 contract
Conduct of the Business. Azur Pending the Effective Time. SATX and STCL each agrees, as to itself and its Subsidiaries, that, during the Pre-Closing Period, except as set forth in Section 5.4 of the Azur Disclosure Schedulepermitted, as required or specifically contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements)by, or as otherwise agreed described in this Agreement, or otherwise consented to or approved in writing by Jazz the other (such agreement consent not to be unreasonably withheld, conditioned withheld or delayed), that during the period commencing on the date hereof and ending at the Effective Time:
(xa) each Each of SATX and STCL and their respective Subsidiaries will (i) conduct their operations according to their ordinary and usual course of business, (ii) use their reasonable best efforts to preserve intact their respective business organization, keep available the services of their officers and employees, and maintain satisfactory relationships with licensors, suppliers, distributors, clients and others having business relationships with them and (iii) take no action which would adversely affect or delay the ability of either SATX or STCL to obtain any necessary approvals of any Regulatory Agency or other Governmental Entity required for the transactions contemplated hereby or to perform its covenants and agreements under this Agreement or to consummate the transactions contemplated hereby;
(b) Neither SATX, STCL nor any of their respective Subsidiaries shall, except as otherwise contemplated in this Agreement, (i) make any change in or amendment to their charter or by-laws (or comparable governing documents); (ii) issue or sell any shares of their capital stock (other than in connection with the exercise of options, warrants or convertible securities outstanding on the date hereof) or any of its other securities, or issue any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any of its other securities, or make any other changes in their capital structure; (iii) declare, pay or make any dividend or other distribution or payment with respect to, or split, redeem or reclassify, any shares of their capital stock; (iv) enter into any contract or commitment except contracts in the ordinary course of business; (v) acquire a material amount of assets or securities; (vi) amend any employee or non-employee benefit plan or program, employment agreement, license agreement or retirement agreement, or pay any bonus or contingent compensation; provided, however, that SATX, STCL and their respective Subsidiaries may take such actions so long as and to the extent that the same are consistent with prior practices; (vii) change or permit to change any method of accounting or accounting practices used by it, except for any such change which is not material or which is required by reason of a concurrent change in GAAP; (viii) agree, in writing or otherwise, to take any of the Azur Group Entities shall conduct its business foregoing actions; (ix) other than in the ordinary course of business, incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (it being understood and operations solely agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and consistent with past practices and, to the extent consistent therewith entering into repurchase agreements); (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(vx) sell, lease, license, assign, transfer, abandonmortgage, convey encumber or otherwise dispose of any assetsof its material properties or assets to any individual, securities, rights corporation or property of any Azur Group Entity, other entity other than a Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person or release or relinquish any material contract rights, in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination contracts or similar payment, or any bonus or similar payment (other than payment agreements in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on force at the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), ; (xi) settle any material claim, action or proceeding involving money damages; or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (Bxii) make or change any Tax material tax election; and
(c) Neither SATX nor STCL shall, (C) file nor permit any of their Subsidiaries to, take any action, engage in any transaction or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to agreement which would cause any of the Azur Group Entities, surrender any right representations or warranties set forth in this Agreement to claim a refund be untrue as of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingconditions to the merger set forth in Article IV not being satisfied or in violation of any provisions of this Agreement, except in every case, as may be required by applicable law.
Appears in 1 contract
Samples: Merger Agreement (Satx Inc)
Conduct of the Business. Azur agreesFrom the date hereof until the Effective Time or the earlier termination of this Agreement (such period, as to itself and its Subsidiaries, that, during the Pre-Closing “Interim Period”), except as set forth in Section 5.4 of the Azur Disclosure Schedule, as expressly contemplated in Schedule 1, as or required by this Agreement or the Related AgreementsAgreement, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed consented to in writing by Jazz (Parent, such agreement consent not to be unreasonably withheld, conditioned or delayed), (x) as set forth in Section 6.1 of the Disclosure Schedule and as required by applicable Law, the Company will, and will cause each of the Azur Group Entities shall its Subsidiaries:
(a) to conduct its business and operations solely only in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a))practice, (yb) each of the Azur Group Entities will to use commercially reasonable efforts to (i) preserve intact its present business operations and maintain organization, including existing relations and goodwill with Governmental AuthoritiesBodies, clients, customers, vendors and suppliers, (ii) retain the services of its present directors, officers, employees, customers, brokers, suppliers contractors and other Persons with which any consultants and (iii) manage working capital of the Azur Group Entities has significant Company and its Subsidiaries in the ordinary course of business relations consistent with past practice and (zc) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) (A) amend or propose to amend the Company Governance Documents or Subsidiary Governance Documents in any manner or (B) split, combine, recapitalize or reclassify the capital stock or other equity interests of the Company or any of its Subsidiaries;
(ii) issue, deliver, sell, pledge, transfer or dispose of, or agree to issue, sell, deliver, pledge, transfer or dispose of, any shares of capital stock or other equity interests of the Company or any of its Subsidiaries or issue any shares of capital stock or equity interests of any class or issue or become a party to any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to the issued or unissued capital stock or other equity interests of the Company or any of its Subsidiaries (other than this Agreement, the Transaction Documents and pursuant to the exercise of currently outstanding Options), or grant any stock appreciation or similar rights;
(iii) reclassify, combine, split, subdivide, redeem, purchase or otherwise acquire any outstanding shares of capital stock or other equity interests of the Company or any of its Subsidiaries or declare, accrue, set aside or pay any dividend or make any other distribution to any Person in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group EntityCompany or its Subsidiaries;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entityacquire (by merger, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entityconsolidation, or make any investment in any equity securities acquisition of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of otherwise) any corporation, partnership or other Person business organization or division thereof or any division of any other Personassets, in each case;
(v) sell, lease, license, assign, transfer, abandon, convey allow the loss or lapse of or otherwise dispose of or subject to any assetsLien other than Permitted Liens any property or assets of the Company or any of its Subsidiaries having a value in excess of $100,000 individually or $250,000 in the aggregate, securities, rights or property of any Azur Group Entityin each case, other than in each case (A) sales of inventory and equipment assets in the ordinary course of business and consistent with past practices, practice or (B) not individually in excess of $500,000pursuant to existing Contracts Made Available to Parent;
(vi) incur sell, license, pledge or otherwise dispose of or encumber any IndebtednessIntellectual Property Rights or IP owned, enter into any new used, or amend existing facilities relating to Indebtedness, issue held for use by the Company and its Subsidiaries in the conduct of their businesses except for non-exclusive licenses or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation sublicenses of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than Intellectual Property in the ordinary course of business and consistent with past practicespractice pursuant to the Company’s standard form of customer Contract (the form of which has been Made Available to Parent), or permit any Intellectual Property Rights items required to be set forth in Section 4.13(a) of the Disclosure Schedule to lapse, expire or be abandoned;
(viiivii) amend, waive any material rights under or terminate (except for a termination resulting from the expiration of a Contract in accordance with its terms) any Material Contract or enter into any new Contract that would be a Material Contract if entered into prior to the date hereof, except in the ordinary course of business and consistent with past practices, practice;
(viii) enter into any Contract that provides for aggregate payments to or adopt from the Company and its Subsidiaries in excess of $3,600,000;
(ix) make any newloans, advances or amend capital contributions to or terminate investments in any existingother Person or otherwise incur or guarantee any Indebtedness other than loans, Benefit Plan advances or capital contributions by the Company or any of its Subsidiaries (including A) to any trust such Subsidiaries or (B) to any employee in connection with travel, entertainment and related business expenses or other funding arrangement)customary out‑of‑pocket expenses in the ordinary course of business consistent with past practice;
(x) commit or authorize any commitment to make any capital expenditures in excess of $100,000 individually or $250,000 in the aggregate or defer any capital expenditures specified in the capital budget of the Company and its Subsidiaries;
(xi) make any change in any method of accounting or auditing practice, (including, procedures with respect to revenue recognition, payments of accounts payable and collection of accounts receivable) other than changes required as required by a result of changes in GAAP or applicable Law;
(ixxii) enter into any partnership, joint venture, joint development or other similar arrangement with one or more Persons;
(xiii) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor as required by or consultant (or similar relationship) of any Azur Group Entity existing as of the date of expressly contemplated by this Agreement or adopted or entered into after undertaken at the date request of this Agreement without violation of this Section 5.4(a): the Purchaser, (A) make commence the employment of or grant any new grant increase in the compensation or awardbenefits payable or to become payable to any current or former director, officer, employee, contractor or vest, accelerate consultant of the Company or otherwise amend any existing grant, benefit of its Subsidiaries (except for the commencement of employment or award, under any Benefit Plan, increases in the ordinary course of business with respect to non-management individuals earning less than $200,000 in total direct compensation); (B) increase the compensation payable to grant any Employeesuch individual any bonus, Independent Contractorequity or equity-based compensation, consultant (retention, severance, change in control or similar relationship) or director of any Azur Group Entity rights; (C) pay terminate, modify or adopt any severance or bonus to any Employee, current or former Independent Contractor, consultant Plan (or similar relationshipany arrangement that would constitute a Plan, if adopted); (D) terminate the employment, change the title, office or director position, or materially alter the responsibilities of any Azur Group Entity;
director, officer, employee, contractor or consultant of the Company or any of its Subsidiaries (xexcept for terminations for cause or actions taken in the ordinary course of business or the payment of accrued or earned but unpaid bonuses with respect to non-management individuals earning less than $200,000 in total direct compensation); (E) accelerate the timing of payment or vesting of any compensation or benefits; (F) implement any employee layoffs in violation of WARN; (G) negotiate or enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement other contract with a trade unionany labor organization, union or employee organization relating to any employee of the Company or its Subsidiaries; or (H) waive, release, limit, or condition any Restrictive Covenant obligation of any current or former employee, director or other individual service provider of the Company of the Company or any of its Subsidiaries;
(xiv) contribute (A) settle or commence any material amount to Proceeding or litigation or (B) enter into any trust consent decree, injunction or other arrangement funding similar restraint or form of equitable relief in settlement of any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust claim or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Lawlitigation;
(xv) change or modify its credit, collection or payment policies, procedures or practices, including accelerating collections or receivables (whether or not past due) or failing to pay or delaying payment of payables or other Liabilities;
(xvi) (A) make, change or rescind any material Tax election, (B) change any annual Tax accounting period, (C) adopt or change any material method, policy or practice of Tax accounting, (D) file any amended income Tax Return or any other material Tax Return, (E) request, waive or consent to any extension or waiver of the limitations period applicable to the assessment, determination or collection of any income Taxes or other material Taxes, (F) settle, resolve or otherwise dispose of any material claim or proceeding relating to income Taxes or other material Taxes (other than the timely payment of Taxes in the ordinary course of business consistent with past practice) (G) enter into any closing agreement affecting any Tax liability or refund, (H) file any request for rulings or special Tax incentives with any Governmental Body, or (I) take, or cause or permit any other Person to take outside the ordinary course of business consistent with past practice, any action or actions which could, individually or in the aggregate, (i) increase the Liability for Taxes of Parent or any of its Affiliates (including, after the Closing, the Company and its Subsidiaries) or (ii) result in, or change the character of, any income or gain that Parent or any of its Affiliates (including, after the Closing, the Company and its Subsidiaries) must report on any Tax Return;
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization recapitalization, or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in make any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth reductions in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contractforce;
(xviii) enter into take any Contract, other than in actions that would have a Material Adverse Effect on the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year Company or (y) payments by any Azur Group Entity in excess of $500,000 per annum;its Subsidiaries; or
(xix) other than (A) authorize, commit or agree to take any action described in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingSection 6.1.
Appears in 1 contract
Conduct of the Business. Azur agrees, as (a) During the period from the date of this Agreement to itself the earlier of the Closing and the termination of this Agreement in accordance with its Subsidiaries, that, during the Pre-Closing Periodterms, except as set forth in Section 5.4 of the Azur Disclosure Schedule(i) otherwise expressly contemplated by this Agreement, as contemplated in Schedule 1, as (ii) required by this Agreement Law or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed iii) consented to in writing by Jazz Purchaser (such agreement which consent will not to be unreasonably withheld, conditioned or delayed), the Company shall use Commercially Reasonable Efforts to (xA) each conduct the businesses of the Azur Group Entities shall conduct its business and operations solely Acquired Companies in the ordinary course of business in all material respects; and consistent with past practices and(B) preserve the rights, to the extent consistent therewith (franchises, goodwill and subject to the restrictions set forth in this Section 5.4(a)), (y) each relationship of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, its employees, customers, brokerslenders, suppliers suppliers, regulators and other Persons others having business relationships with which any the Acquired Companies.
(b) Without limiting the generality of the Azur Group Entities has significant business relations and (z) subject foregoing Section 6.01(a), during the period from the date of this Agreement to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each the earlier of the Azur Group Entities not toClosing and the termination of this Agreement in accordance with its terms, directly or indirectly do, or commit to do, any of the following:
except as (i) set forth on Schedule 6.01(b), (ii) otherwise expressly contemplated by this Agreement, (iii) required by Law or (iv) consented to in writing by Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Company will not, and will not permit any other Acquired Company to: (A) issue, sell or otherwise permit any transfer of shares of any Acquired Company’s Equity Interests or issue, sell or otherwise permit any transfer of any Equity Interests convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any shares of any Acquired Company’s Equity Interests; (B) effect any recapitalization, reclassification, stock dividend or distribution paid in stock, stock split (including reverse stock split), combination, exchange, readjustment or like change in any Acquired Company’s capitalization; (C) amend (whether by merger, consolidation or otherwise) any Acquired Company’s Organizational Documents; (D) make any redemption or purchase of any shares of any Acquired Company’s Equity Interests; (E) declare, accrue, set aside or pay any dividend or make any other distribution (whether in cash, stock or other property or any combination thereof) to any Acquired Company’s members or shareholders whether or not upon or in respect of any shares of capital stock any Acquired Company’s Equity Interests, except for dividends or distributions paid in cash and made prior to the Calculation Time; (F) permit, allow or suffer any of the Acquired Companies’ assets to become subjected to any Lien (other securitiesthan Permitted Liens); (G) waive, release or assign any material claims, rights or benefits of the Acquired Companies under any Contract or otherwise other than in the ordinary course of business; (H) make any change in any method of financial accounting or accounting practice or policy other than those required by GAAP; (I) acquire by merging or consolidating with, or repurchaseby purchasing any of the assets of, redeem or by any other manner, any Person or division thereof or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
assets (ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory inventory, materials, supplies and equipment in the ordinary course of business) or merge or consolidate the Company or any of its Subsidiaries with any other Person or restructure, reorganize or adopt a plan of complete or partial liquidation, dissolution, consolidation or recapitalization or partially or completely liquidate its assets or operations; (J) sell, lease, sublease, license, transfer, abandon or fail to renew or otherwise dispose of any material assets or properties of the Acquired Companies (other than sales of inventory or sales, transfers or other dispositions of other immaterial assets in the ordinary course of business and consistent with past practicesor as described on Schedule 3.09); (K) enter into, amend, modify, sublease, assign or terminate any Real Property Lease or Material Contract (or any Contract that would be a Real Property Lease or Material Contract, as applicable, if it existed as of the date hereof) other than, solely in the case of Contracts that are Material Contracts solely due to clauses (i), (vii), (viii), (xi) or (xiv) of Section 3.12(a), in the ordinary course of business; (L) materially change the amount of, or terminate, any insurance coverage held by or for the benefit of the Acquired Companies; (M) make or change any material Tax election, change any annual Tax accounting period, adopt or change any material method of Tax accounting, amend any income or other material Tax Returns, enter any closing agreement, settle any material Tax claim, audit or assessment, or surrender any right to claim a material Tax refund, net operating loss carryforward, consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment, or (Bfor the avoidance of doubt, except attributable to any Tax election) not individually other offset or reduction in excess of $500,000;
any Liability for Taxes; (viN) incur any Indebtednesscapital expenditures or any obligations or Liabilities in respect thereof, except for expenditures set forth on the Acquired Companies’ capex budget delivered to Purchaser prior to the date hereof; (O) except to the extent required by the terms of any Plan or Material Contract disclosed on Schedule 3.17(a) as in effect on the date hereof, (I) grant or materially increase any severance, retention or termination pay to, or enter into or amend any severance, retention, termination, employment, consulting, bonus, deferred compensation, change in control or severance agreement with, any current or former employee or consultant, (II) materially increase the compensation or benefits payable or provided to, or modify the terms of any employment, consulting or similar agreement with, any current or former employee or consultant, (III) establish, adopt, enter into any new or amend existing facilities relating any Plan, (IV) issue any loan to Indebtednessany current or former employee or consultant, issue (V) hire any employee or sell consultant other than on an “at will” basis to fill vacancies arising due to terminations of employment of employees or consultants who are below the level of vice president, (VI) terminate the employment of any debt securities employee or warrants consultant at or above the level of vice president other than for “cause,” (VII) transfer the employment of any employee or consultant from one Person to another or (VIII) grant any equity or equity-based or other rights to acquire any debt securities long-term incentive awards to, or guarantee any debt securities;
(vii) create discretionarily accelerate the vesting or permit the creation payment of any Lien awards held by, any current or former employee or consultant, in each case outside the ordinary course of business; (P) other than in the ordinary course of business, offer or grant any discounts, allowances, rebates, credits, preferential terms or similar reductions in price or other trade terms or other accommodations or concessions to any customer, supplier or other counterparty, in each case, that is material; (Q) create, incur, assume, suffer to exist or otherwise become liable with respect to any Indebtedness for borrowed money, other than Indebtedness incurred under the Company’s existing credit agreements in the ordinary course of business and that will constitute Estimated Closing Indebtedness and Final Indebtedness hereunder; (R) commence, settle or compromise, or offer to commence, settle or compromise, (I) any Action involving or against any of the Acquired Companies (other than a Permitted Lienimmaterial Actions solely for monetary relief to be paid in full prior to the Calculation Time) outside the ordinary course of business or (II) any Action that relates to the transactions contemplated hereby; (S) change its working capital and/or cash management practices or its policies, practices or procedures with respect to collection of accounts receivable, establishment of reserves for uncollectable amounts, accrual of accounts receivable, prepayment of expenses, inventory management, payment of accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits (in each case including the timing thereof), including by engaging in (I) any trade loading practices or any other promotional sales or discount activity with any customers or clients with the effect of accelerating to pre-Closing periods any material amount of sales that would otherwise be expected (based on past practice) to occur in post-Closing periods, or (II) any material amount of the assets of any Azur Group Entities promotional sales or discounting activity (other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangementpractice), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization ; or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxvT) agree or commit otherwise commit, whether in writing or otherwise, to do do, or take any action or omit to take any action that would result in, any of the foregoing. Notwithstanding anything to the contrary in this Section 6.01, (1) the Acquired Companies’ failure to take any action prohibited by this Section 6.01(b) will not be a breach of Section 6.01(a), and (2) the Acquired Companies may enter into or pay any bonus arrangements with employees of the Acquired Companies so long as such bonuses are included in the calculation of Estimated Transaction Expenses or paid prior to the Closing.
Appears in 1 contract
Conduct of the Business. Azur agrees(a) From the date hereof until the Effective Time, as the Company shall use its commercially reasonable efforts to itself conduct its and its Subsidiaries, that, during ’ business in the Pre-Closing PeriodOrdinary Course of Business, except as set forth in Section 5.4 of on the Azur Disclosure Covenants Exceptions Schedule.
(b) From the date hereof until the Effective Time, except as otherwise contemplated by this Agreement, as contemplated in set forth on the Covenants Exceptions Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed consented to in writing by Jazz (such agreement not to be unreasonably withheldthe Purchaser, conditioned or delayed)the Company shall not, (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities its Subsidiaries not to, directly or indirectly do, or commit to do, any of the following:
(i) declareissue, accrue, set aside sell or pay any dividend or make any other distribution in respect of deliver any shares of its or any of its Subsidiaries’ capital stock (other than with respect to the exercise of Options outstanding as of the date hereof) or other securitiesissue, sell or deliver any securities convertible into, or repurchaseoptions with respect to, redeem or otherwise acquire warrants to purchase or rights to subscribe for, any shares of its or any of its Subsidiaries’ capital stock or other securities of, or other ownership interests in, any Azur Group Entitystock;
(ii) issuedeclare, deliverset aside, pledgemake, encumberpay or effect any recapitalization, sell or authorize to sell any shares of capital reclassification, stock of dividend (or other equity interests distribution or payment on equity), stock split, combination or like change in its capitalization or amend the terms of any Azur Group Entity, outstanding securities of the Company or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreementits Subsidiaries;
(iii) amend its or otherwise alter any of its Subsidiaries’ certificate of incorporation or bylaws (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entityequivalent organizational documents);
(iv) effect or become a party except pursuant to any Contract relating to a Competing Transaction with respect to each Azur Group Entityexisting as of the date hereof concerning the purchase of any shares of Company Stock or any Options, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities redemption or purchase of any other Person, including any joint venture, or acquire the stock or all or substantially all shares of the assets or rights of any other Person its or any division of any other Personits Subsidiaries’ capital stock;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course Ordinary Course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practicesBusiness, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by under the terms of any Benefit Contract or Plan or any Contract as may be required to comply with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): applicable Law (A) make increase the salary or other compensation of any new grant employee of the Company or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Planof its Subsidiaries, (B) increase the compensation payable to coverage or benefits available under any Employee, Independent Contractor, consultant (or similar relationshipcreate any new) Plan or director of otherwise modify or amend or terminate any Azur Group Entity Plan in a manner that would reasonably be expected to materially increase the cost to the Company or its Subsidiaries, or (C) pay enter into any severance employment or bonus consulting arrangement not terminable at will with no further material liability with any employee or independent contractor;
(vi) other than with respect to any Employeeexisting revolving credit facilities, current issue, create, incur, assume, guarantee, endorse or former Independent Contractorotherwise become liable or responsible with respect to any Funded Indebtedness;
(vii) acquire any properties or assets or sell, consultant (assign, license, transfer, convey, lease or similar relationship) or director otherwise dispose of any Azur Group Entityof the properties or assets of, or used by, the Company and its Subsidiaries, other than in the Ordinary Course of Business;
(viii) enter into or agree to enter into any merger or consolidation with any Person, engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities, of any other Person (other than the Company or any of its wholly owned Subsidiaries);
(ix) cancel or compromise any material debt or claim or waive or release any material right of the Company or any of its Subsidiaries except in the Ordinary Course of Business;
(x) enter into any Contract pursuant to which commitment for capital expenditures of the Company and its Subsidiaries in excess of $200,000 for any Azur Group Entity may become obligated to make any severanceindividual commitment and $500,000 for all commitments in the aggregate, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entityunless required by a Lease;
(xi) except as otherwise required by Law, enter into, amend or modify or terminate any employee Contract with any labor union or other than for cause (in which case Azur shall first consult labor or collective bargaining agreement of the Company or any of its Subsidiaries or, through negotiation or otherwise, make any commitment or incur any material liability to any labor organization with Jazz), respect to the Company or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000of its Subsidiaries;
(xii) enter into any Contract that restricts the ability of the Company or forgive any loan of its Subsidiaries to employees, directors, compete with or consultantsconduct any business or line of business in any geographic area or solicit the employment of any Persons;
(xiii) enter into other than in the Ordinary Course of Business, terminate, amend, restate or supplement or waive any new collective bargaining agreement material rights under any (A) Contract set forth on the Contracts Schedule or agreement with a trade union(B) material Permit;
(xiv) contribute settle or compromise any material pending or threatened Proceeding or any claim or claims for, an amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms individually in excess of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement$50,000, or by applicable Law;in the aggregate, in excess of $100,000; or
(xv) (A) adopt a plan take any action with the primary purpose of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit adversely affecting the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any ability of the assets owned or used parties to consummate the transactions contemplated by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingAgreement.
Appears in 1 contract
Conduct of the Business. Azur agrees(a) During the period from the date hereof through the Closing Date, as to itself Shareholders and Seller (directly and through its Subsidiariesdirectors, thatofficers, during the Pre-Closing Periodemployees, except as set forth in Section 5.4 of the Azur Disclosure Scheduleconsultants, as contemplated in Schedule 1contractors, as required by this Agreement or the Related Agreementsrepresentatives, as reasonably necessary to effect the Reorganization (subject to agents and in accordance with this Agreement advisors) shall carry on and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable their best efforts to preserve the Assets, the Business and maintain existing relations and goodwill relationships with Governmental Authoritiescustomers, suppliers, employees, customersconsultants, brokerscontractors, suppliers representatives, agents, licensees and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except others with respect to exercise of Azur Options outstanding the Business in substantially the same manner as Seller did prior to the date hereof. If there occurs any deterioration in any relationship between Seller, on the one hand, and any customer, supplier, employee, consultant, contractor, representative, agent or advisor of this Agreement;Seller, on the other hand, then Seller will promptly bring such information to the attention of Buyer in writing and Seller will use its best efforts to repair and restore such relationship.
(iiib) amend During the period from the date hereof through the Closing Date, Seller or otherwise alter Shareholders will not and will not permit and will instruct their respective Affiliates, directors, officers, employees, consultants, contractors, representatives, agents or advisors of Seller to not, without the prior written consent of Buyer: (i) transfer or propose license to any amendment or alteration to) the Governing Documents of Person any Azur Group Entity or amend rights to any terms of the outstanding securities of any Azur Group Entity;
Proprietary Rights; (ivii) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entitychange, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities way, Seller’s method of any other Person, including any joint venture, operating the Business or acquire the stock Seller’s accounting practices or all or substantially all of the assets or rights of any other Person or any division of any other Person;
record-keeping practices relating thereto; (viii) sell, lease, license, assign, transfer, abandon, convey license or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit PlanAssets, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practicesprior practice; (iv) if such electionmodify, adoptionwaive, change, amendmentamend, agreementrelease, settlementrescind, surrendermake an accord and satisfaction of, consent or terminate any Contract or any term, condition, or provision thereof, other action would have than by satisfying any such Contract by performance in accordance with the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees terms thereof in the ordinary course of business and consistent with past practicesprior practice; (v) allow any of the Assets to become subject to any Lien except Permitted Encumbrances; (vi) commit any act or guarantee omission that might materially impair or jeopardize Buyer’s use or ownership of the indebtedness Assets after the Closing Date; or (vii) take, or agree in writing or otherwise to take, any of any Person;the actions described in subsections (i) through (vi) above.
(xxivc) make Neither Seller or any capital expendituresShareholder nor any director, except for capital expenditures thatofficer, when added to all other capital expenditures made on behalf employee of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
Seller will (xxvi) take or agree or commit to do take any action that would make any representation and warranty of Seller or Shareholder hereunder inaccurate in any material respect at, or as of any time prior to, the foregoingClosing Date, or (ii) omit or agree to omit to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at any such time, except for actions taken in the ordinary course of business.
Appears in 1 contract
Conduct of the Business. Azur agrees(a) From the date hereof until the Closing Date, the Company shall, and shall cause its Subsidiaries to, conduct their respective businesses in the ordinary course of business, except (x) if the Purchaser shall have consented in writing (which consent will not be unreasonably withheld, conditioned or delayed) or (y) as otherwise explicitly permitted by this Agreement; provided that, notwithstanding the foregoing, (1) the Company and its Subsidiaries may use all available cash to itself repay any Indebtedness or to make cash distributions on or prior to the Closing, (2) no action by the Company or its Subsidiaries with respect to matters specifically addressed in Section 7.01(b) shall be deemed a breach of this Section 7.01(a), unless such action would constitute a breach of Section 7.01(b), and (z) the Company and its Subsidiaries, that, during ’ failure to take any action prohibited by Section 7.01(b) (after taking into account the Pre-carveouts set forth in the introduction to Section 7.01(b)) shall not be a breach of this Section 7.01(a).
(b) From the date hereof until the Closing PeriodDate, except (v) as set forth in Section 5.4 on the Conduct of the Azur Disclosure Business Schedule, (w) as contemplated in Schedule 1, as required otherwise explicitly permitted by this Agreement or the Related AgreementsAgreement, (x) as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed consented to in writing by Jazz the Purchaser (such agreement which consent will not to be unreasonably withheld, conditioned or delayed), or (y) as required by Law to be implemented during the period between the date hereof and the Closing Date, the Company shall not and shall cause its Subsidiaries not to:
(i) enter into any contract outside of the ordinary course of business;
(ii) authorize, issue, sell or deliver any units or shares of its or its Subsidiaries’ equity securities, or authorize, issue, sell or deliver any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any units or shares of its or its Subsidiaries’ equity securities;
(iii) increase the compensation, incentive arrangements, or other benefits to any officer or employee of the Company except increases to non-officer employees in the ordinary course of business;
(iv) adopt, amend, terminate or materially increase the benefits under any Plans;
(v) make any distribution or declare, pay or set aside any dividend (other than any distribution or dividend paid solely in cash);
(vi) authorize or effect any recapitalization, reclassification, equity split or like change in its or its Subsidiaries’ capitalization;
(vii) merge with or into, or consolidate with, any other Person;
(viii) authorize or effect any liquidation or other dissolution;
(ix) amend its or its Subsidiaries’ certificate or articles of formation or incorporation (or similar organizational documents);
(x) each make any redemption of, purchase or otherwise acquire any units or shares of its or its Subsidiaries’ equity securities;
(xi) sell, assign, transfer, license, lease or, other than in the ordinary course of business, subject to any Lien other than a Permitted Lien, any of its material assets;
(xii) acquire or agree to acquire in any manner (whether by merger or consolidation, the purchase of an equity interest in or a material portion of the Azur Group Entities shall conduct its assets of or otherwise) any business and operations solely or any corporation, partnership, association or other business organization or division thereof or any other Person, or acquire any material assets;
(xiii) make any capital expenditures in excess of $500,000 in the aggregate or commitments therefor, except (A) in the ordinary course of business and consistent with past practices and, or (B) for such capital expenditures or commitments therefor that are reflected in the Company’s or its Subsidiaries’ current budget as provided to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding Purchaser prior to the date of this Agreement;
(iiixiv) amend commence or otherwise alter (settle any Proceeding requiring or propose any amendment or alteration to) the Governing Documents reasonably expected to require a cash payment in excess of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices$500,000, or (B) not individually in excess commence or settle any Proceeding with any Governmental Entity or that results in, or could reasonably be expected to result in, the imposition of $500,000any material restrictions upon its or its Subsidiaries’ business;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viiixv) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except GAAP to be implemented during the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of period between the date of this Agreement or adopted or entered into after and the date of this Agreement without violation of this Section 5.4(a): Closing Date, (A) make change any new grant of its accounting principles, methods or awardpractices (including principles, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except methods and practices relating to the extent required by the existing terms estimation of such Benefit Plan, trust or reserves and other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xvliabilities) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement write up, write down or exercise any discretion providing for acceleration of payment or performance as a result of a change of control write off the book value of any Azur Group Entitymaterial asset;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any material Tax election, (C) change any annual Tax accounting period, adopt or change any method of Tax accounting, file any income or other material Tax Return or amend any Tax Return unless such income or (D) other material Tax Return has been made available to the Purchaser for review within a reasonable period prior to the due date for filing and the Purchaser has considered in good faith any comments thereto provided promptly by the Purchaser after delivery of such Tax Return to the Purchaser, file any claims for Tax refunds, enter into any closing agreement, settle any Tax claim claim, audit or assessment relating to any of the Azur Group Entities, or surrender any right to claim a refund Tax refund, offset or other reduction in Tax liability;
(xvii) incur any Indebtedness (other than pursuant to the Existing Credit Agreement), guarantee the Indebtedness of Taxes, any other Person or consent make any loan or advance to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (other Person, in each case other than electionsin the ordinary course of business;
(xviii) enter into, filingsamend in any material respect, settlementsor terminate any contract set forth on the Contracts Schedule or any contract that would be required to be set forth on the Contracts Schedule if entered into prior to the date hereof, closing agreementsother than in the ordinary course of business;
(xix) enter into or amend any Affiliate Agreement;
(xx) effect or publicly announce any intention to effect, extensions any temporary or waivers made permanent change in the pricing of its or its Subsidiaries’ products and services (including pursuant to promotions, incentives, discounts, customer financing activities, and other similar sales activities), other than such changes in the ordinary course of business consistent with past practices) if practices (taking into account the time of year such election, adoption, change, amendment, agreement, settlement, surrender, consent temporary or other action would have permanent changes were initiated and the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute length of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datesuch temporary change);
(xxiiixxi) lend money to make any person (except for business expenses to loan to, or enter into any other material transaction with, any of its current directors, officers, or employees in outside the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added payments of cash bonuses or pursuant to all other capital expenditures made any agreement set forth on behalf of the Azur Group Entities during Contracts Schedule or the Pre-Closing Period, do not exceed $1 millionAffiliated Transactions Schedule; or
(xxvxxii) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during From the Pre-Closing Period, except as set forth in Section 5.4 date hereof until the earlier of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with termination of this Agreement and the Related Agreements)Closing Date, or except (i) as otherwise agreed to in writing by Jazz set forth on Schedule 5.01, (such agreement ii) if Purchaser shall have consented (which consent shall not to be unreasonably withheld, conditioned or delayed), (xiii) each as required by Law or at the direction of any Governmental Entity having jurisdiction over Seller or US Seller or any of the Azur Group Entities Companies or (iv) as otherwise expressly contemplated by this Agreement, (1) Seller shall cause the Group Companies to conduct its business and operations solely their businesses in the ordinary course of business and consistent with past practices andbusiness; provided, that, notwithstanding the foregoing or clause (2) of this Section 5.01, (x) the Group Companies may use available cash to repay any Indebtedness or to make cash dividends or other cash payments or distributions on or prior to the extent Closing; provided that any such payments and distributions made following the Reference Time shall be consistent therewith (with, and subject to as contemplated by, the restrictions set forth in this Section 5.4(a))Estimated Closing Statement, (y) each of the Azur Group Entities will use commercially reasonable efforts Companies may take any action expressly contemplated or required to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of be taken prior to the Azur Group Entities has significant business relations Closing pursuant to this Agreement and (z) subject no action required to applicable Law as agreed in good faith be taken by counsel any Group Company pursuant to Jazzthis Agreement (other than this Section 5.01), Azur including Section 5.05, shall be deemed to constitute a breach of this Section 5.01 if such action is so taken; and (2) Seller shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, permit any of the followingGroup Companies to:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(iia) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in deliver any equity securities of any other Person, including Group Company or issue or sell any joint venturesecurities convertible into, or acquire the stock options with respect to, or all or substantially all of the assets warrants to purchase or rights to subscribe for, any equity securities of any other Person or any division of any other PersonGroup Company;
(vb) effect any recapitalization, reclassification, distribution, consolidation, split, reverse split, division or subdivision of any equity interests or like change in its capitalization;
(c) amend its organizational documents;
(d) make any redemption or purchase of its equity interests;
(e) sell, lease, license, assign, transfer, abandon, convey assign or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually transfer tangible assets in excess of $500,000;
(vi) incur any Indebtedness250,000, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent except for sales of obsolete assets or assets with past practices, enter into de minimis or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Lawno book value;
(ixf) sell, assign, transfer, abandon or exclusively license any material Company Intellectual Property, except to in the extent required by the terms ordinary course of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entitybusiness;
(xg) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination materially amend or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or voluntarily terminate any Material Contract;
(xviii) enter into any Contract, Contract other than in the ordinary course of business and consistent with past practices and that does not require business;
(xh) a term in excess of one year make an acquisition of, capital investment in, or (y) payments by any Azur Group Entity loan to, any other Person in excess of $500,000 per annum250,000, individually or in the aggregate, in respect of which any Group Company would have a payment obligation after the Closing, except in the ordinary course of business or pursuant to any existing agreement or budget provided to Purchaser prior to the date hereof;
(xixi) other make any capital expenditures greater than $250,000, individually or in the aggregate, or commitments therefor in respect of which any Group Company would have a payment obligation after the Closing, except (A) in connection the ordinary course of business and (B) for such capital expenditures or commitments therefor that are reflected in the Company’s current budget;
(j) except as required by Law or under the terms of any Employee Benefit Plan, (A) grant or announce any incentive awards or any material increase in the salaries, bonuses or other compensation and benefits payable by a Group Company to any of its employees, officers or directors, other than salary increases in the ordinary course of business to employees who have a base salary less than $100,000; (B) materially increase the benefits under any Employee Benefit Plan; (C) enter into or amend in any material respect any employment, change in control, severance, retention or similar contract with any actual officer, employee, consultant or alleged breach other agent of any Group Company (other than offer letters providing for at-will employment without post-termination obligations with newly-hired employees who are hired in the ordinary course of business); or (D) terminate or materially amend any Employee Benefit Plan or adopt any arrangement for the current or future benefit or welfare of any officer or employee, officer or director of any Group Company that would be an Employee Benefit Plan if it were in existence as of the date hereof; provided, that in no event shall this Agreement Section 5.01(j) be deemed to prohibit or restrict in any Related Agreement way the ability of Seller or US Seller, as the case may be, to pay any portion of, or to provide any other form of compensation or benefit derived from, the Purchase Price to any employee, officer or director of any Group Company, provided that Seller provides notice thereof to Purchaser as soon as reasonably practicable;
(k) settle any Action if (A) the amount payable by any Group Company in connection therewith would exceed $250,000, individually or in the aggregate, or would be payable after the Closing or (B) such settlement would be material to the commencement Group Companies;
(l) commence any proceeding for the voluntary bankruptcy, liquidation, dissolution or winding-up of any litigation for patent infringement Group Company;
(m) enter into any Contract prohibiting or materially restricting the ability of any Group Company to conduct its business in response any geographical area or to compete with any certification Person, in each case, after the Closing;
(n) change any methods of non-infringement accounting or invalidity accounting practices or policies or revalue in any material respect any of its properties or assets, in each case unless required by Law or GAAP;
(o) make, change or revoke any material election in respect of Taxes of any Approved Product contained in Group Company, change any ANDA accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement or similar filingagreement with any Governmental Entity with respect to Taxes, commence or settle or compromise any litigationclaim, assessment, audit or waive, release, relinquish or assign any material claims or material rights, including Action with respect to any Azur IP Rights;
(xx) adopt any changeTaxes, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes;
(p) accelerate the collection of or discounting of any accounts receivable, delay the payment of accounts payable or consent to deferred expenses, alter billing practices or otherwise increase Cash, except in the ordinary course of business;
(q) incur any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity Indebtedness (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made (i) borrowings under the Group Companies’ primary revolving line of credit in the ordinary course of business for working capital purposes; provided that all such borrowings shall be made prior to the Reference Time and consistent with past practiceswith, and contemplated by, the Estimated Closing Statement or (ii) if such electionintercompany Indebtedness among the Group Companies) or subject the Shares, adoption, change, amendment, agreement, settlement, surrender, consent the Units or other action would have the effect of increasing the Tax liability any portion of the Azur Group Entities Companies’ properties or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money assets to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all Lien other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionthan Permitted Liens; or
(xxvr) agree enter into or authorize an agreement with respect to any of the foregoing actions, or commit to do take any action to effect any of the foregoingforegoing actions. Notwithstanding anything to the contrary contained herein, (A) nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct the operations of any Group Company prior to the Closing, and (B) the Group Companies’ failure to take any action prohibited by this Section 5.01 shall not be a breach of this Section 5.01 or any other provisions of this Agreement.
Appears in 1 contract
Conduct of the Business. Azur agrees, Except as to itself and its Subsidiaries, that, during the Pre-Closing Period, except as expressly set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements)Restructuring Support Agreement, or as otherwise agreed required by applicable Law, during the period from the date of this Agreement to in writing by Jazz (such agreement not to be unreasonably withheldthe Effective Date, conditioned or delayed)the Company shall, (x) and shall cause each of the Azur Group Entities shall conduct its business and operations solely Subsidiaries to, operate in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a))therewith, (y) each of the Azur Group Entities will use their commercially reasonable efforts to preserve intact in all material respects their existing business operations, keep available the services of their current officers and key employees and maintain existing relations a workforce sufficient to support on-going business operations and goodwill preserve in all material respects their relationships with Governmental Authorities, employees, customers, brokerssuppliers, suppliers licensors, licensees, distributors and other Persons others having material business dealings with which the Company or its Subsidiaries. Without limiting the generality of the foregoing, and except as otherwise expressly provided by this Agreement or the Restructuring Support Agreement or expressly required by the Credit Agreement or the Indenture, prior to the Effective Date, the Company shall not, and shall cause its Subsidiaries not to, take any of the Azur Group Entities has significant business relations following actions without the prior written consent of the Backstop Equity Investors, which consent shall not be unreasonably withheld, conditioned or delayed (other than with respect to clauses (a) and (zb) subject to applicable Law as agreed below, which consent may be granted or withheld in good faith by counsel to Jazz, Azur shall not and shall cause each the sole discretion of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:Backstop Equity Investors):
(a) (i) declare, accrue, set aside or pay any dividend dividends on, or make any other distribution distributions in respect of, any of any shares of the capital stock or other securitiesof the Company, or repurchase(ii) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, thereof or any rights, warrants or options to acquire any such shares of capital stock or other equity interestssecurities or (iii) pay or commit to pay any management fees, except with respect to exercise of Azur Options outstanding prior to management services fees or similar fees, including “advisory services fees” or any similar fees accrued under the date of this Advisory Agreement;
(iiib) amend adjust, split, combine or otherwise alter (reclassify any capital stock or equity interests or issue or propose any amendment or alteration to) authorize the Governing Documents issuance of any Azur Group Entity other securities (including options, profit interest, warrants or amend any terms of the outstanding securities of any Azur Group Entitysimilar security exercisable for, or convertible into, such other security);
(ivc) effect incur or become a party commit to incur any Contract relating to a Competing Transaction capital expenditure or authorization or commitment with respect thereto in excess of $2.4 million individually or $6 million in the aggregate;
(d) acquire or agree to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split acquire by merging or similar transaction with respect to each Azur Group Entityconsolidating with, or make purchase any investment in any equity securities portion of the stock of, or other ownership interests in, or substantial portion of assets of, or by any other Personmanner, including any business or any corporation, partnership, association, joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Personlimited liability company;
(ve) sell, lease, licensemortgage, assignpledge, transfer, abandon, convey grant any Encumbrance on or otherwise encumber or dispose of any assets, securities, rights of its properties or property assets including on the capital stock or equity interests of any Azur Group EntitySubsidiary of the Company; provided , other than that, the Company may extend or replace any liens in each case existence as of the date hereof and listed on Schedule 4.11(e) and complete the asset sales listed on Schedule 4.11(e) hereto;
(Af) sales of inventory and equipment in incur or permit to exist or guarantee any Indebtedness after the ordinary course of business and consistent with past practices, or (B) not individually date hereof in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than 3.7 million in the ordinary course aggregate, and not including, for the sake of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Planclarity, (Bi) increase the compensation payable to any EmployeeABL Loan Facility, Independent Contractorthe Term Loan Facility, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employeethe Senior Notes, the Reliable Notes and current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employeetrade debt, in either each case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement as existing on the date of this Agreement, or by applicable LawAgreement and (ii) the Indebtedness reflected on Schedule 4.11(f);
(xvg) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (Ai) enter into, assume or permit any of the assets owned reject or used by it to become bound by any contract that is or would constitute a Material Contractamend, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v)restate, (xi) or (xxiv) of this Section 5.4(a)supplement, or (B) modify in any material respectmodify, amend in any material respect waive or terminate any Material Contract;
(xviii) enter into any Contract, material permit or unexpired lease, other than in the ordinary course of business and consistent with past practices and that does not require (xii) enter into any settlement of any Action relating to a term in excess of one year Material Contract or (yiii) payments by enter into any Azur Group Entity in excess of $500,000 per annumContract that would not be a Material Contract, that delays or is reasonably expected to delay the Effective Date;
(xixh) other than adopt or propose any amendments to any of the Company’s or its Subsidiaries’ Organizational Documents; except, in furtherance of the Plan or the transactions contemplated hereby;
(i) except (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRSthe terms of an existing Contract, in its accounting policiesagreement, procedures arrangement, plan or practices;
(xxi) license or permit any rights policy disclosed to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change the Backstop Equity Investors on a method of accounting for Tax purposes, except as required by applicable LawSchedule to this Agreement, (B) make as required to comply with Law or change any Tax election, (C) file or amend any Tax Return or in the case of (D) enter into any closing agreementy), settle any Tax claim or assessment relating to any of the Azur Group Entitiesbelow, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practicespractice, (w) if such electionenter into, adoptionadopt, changeamend or terminate any Company Benefit Plan, amendment(x) increase in any manner the compensation or fringe benefits of any director or officer of the Company or any of its Subsidiaries, (y) enter into, renew (other than Contracts, agreements, commitments or arrangements that by their terms renew automatically without action by either party) or terminate any Contract, agreement, settlement, surrender, consent commitment or other action would have arrangement providing for the effect payment of increasing the Tax liability compensation or benefits to any director or officer of the Azur Group Entities Company, or (z) terminate the Jazz Group Entities employment of or hire any officer or director of the Company (other than termination for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datecause);
(xxiiij) lend money commence any Action, (other than an Action as a result of an Action commenced against the Company or any of its Subsidiaries), or compromise, settle or agree to settle any person (except for business expenses to its current employees Action other than compromises, settlements or agreements in the ordinary course of business and consistent with past practices) practice that involve only the payment of money damages not in excess of $100,000 individually or guarantee $1,000,000 in the indebtedness aggregate, in any case without the imposition of any Personequitable relief;
(xxivk) make any capital expenditureschange materially its financial or tax accounting methods, principles or practices, except for capital expenditures thatinsofar as may have been required by a change in GAAP or applicable Law, when added to all other capital expenditures made on behalf or revalue any of its material assets;
(l) take any action inconsistent with this Agreement or the Azur Group Entities during the Pre-Closing Period, do not exceed $1 milliontransactions contemplated hereby; or
(xxvm) commit or agree or commit to do take any of the foregoing.
Appears in 1 contract
Samples: Backstop Stock Purchase Agreement (Keystone Automotive Operations Inc)
Conduct of the Business. Azur agrees(a) During the Pre-Closing Period, without the prior written consent of Parent, which shall not be unreasonably withheld, conditioned or delayed, and except for the Pre-Closing Transactions, the Company shall and shall cause each of its Subsidiaries to, in all material respects,
(i) except as otherwise expressly contemplated by this Agreement or as described on Section 6.2 of the Company Disclosure Schedule, conduct their respective businesses only in the Ordinary Course of Business; (ii) use its commercially reasonable efforts to itself preserve intact its present business operations, organization and goodwill; (iii) use its Subsidiariescommercially reasonable efforts to preserve intact it present business relationships (contractual or otherwise) with all customers and suppliers, thatsubject to the Company’s good faith business judgement; and (iv) use its commercially reasonable efforts to keep available the services of its current employees and consultants.
(b) Without limiting the generality of Section 6.2(a), during the Pre-Closing Period, except as set forth in (i) to the extent described on Section 5.4 6.2 of the Azur Company Disclosure Schedule, (ii) as otherwise expressly contemplated in Schedule 1, as required by this Agreement Agreement, (iii) in the Ordinary Course of Business or the Related Agreements(iv) as consented to or approved by Parent in writing, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), which consent or as otherwise agreed to in writing by Jazz (such agreement approval shall not to be unreasonably withheld, conditioned or delayed), (x) each of neither the Azur Group Entities Company nor its Subsidiaries shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which take any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:following actions:
(i) declareamend its Organizational Documents, accrueeffect any split, set aside or pay any combination, exchange, reclassification, recapitalization, stock dividend or make similar action with respect to its capital stock or other Equity Interests or adopt or carry out any other distribution in respect plan of complete or partial liquidation or dissolution;
(ii) except for the issuance of shares of Common Stock pursuant to the conversion of any Convertible Debenture, the grant of Options contemplated by this Agreement or the exercise of any Warrant, authorize, transfer, issue, sell or dispose of any shares of capital stock or other securitiessecurities or, except pursuant to this Agreement, grant options, warrants, calls or repurchase, redeem other rights to purchase or otherwise acquire any shares of the capital stock or other securities of the Company or any Company Subsidiary;
(iii) declare or pay a dividend on, or make any other distribution in respect of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, the Company’s or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of Company Subsidiary’s capital stock or other equity interests, except with respect to exercise cash dividends or distributions by any of Azur Options outstanding prior the Company Subsidiaries to the date of this Agreement;
(iii) amend Company or repurchase, redeem or otherwise alter (acquire or propose cancel any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entityits capital stock;
(iv) effect acquire any real property or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entitysell, recapitalizationassign, reclassification of shareslicense, stock splittransfer, reverse split convey, lease or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities otherwise dispose of any other Personreal property or amend, including modify, extend, renew or terminate any joint venture, Lease or acquire the stock or all or substantially all of the assets or rights of entered into any other Person or any division of any other Personnew Lease;
(v) incur, assume or otherwise become liable in respect of any Indebtedness or incur or suffer any Encumbrance, other than Permitted Encumbrances, on any of its Assets or incur or become subject to any material Liability, except Indebtedness or Liabilities incurred in the Ordinary Course of Business;
(vi) enter into any transactions with any Affiliate of any Acquired Company, including the Principals and their Related Parties, other than loans or advances among the Acquired Companies;
(vii) (A) merge or consolidate with any Person; (B) acquire any material Assets, except for acquisitions of Assets in the Ordinary Course of Business; or (C) make any loan, advance or capital contribution to, or acquire any Equity Interests in, any Person (other than loans and advances to Company Associates in the Ordinary Course of Business, and other than loans or advances to another Acquired Company);
(viii) sell, lease, license, assign, transfer, abandon, convey exclusively license or otherwise dispose of any assetsof its material Assets or any Company Intellectual Property Rights, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment except in the ordinary course Ordinary Course of business and consistent with past practices, Business;
(ix) make or (B) not individually commit to make any capital expenditure in excess of $500,000;
(vi) incur any Indebtedness, enter into any new 250,000 individually or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than $1,000,000 in the ordinary course of business and consistent with past practices;
(viii) aggregate, except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except for currently contemplated real estate improvements which have been disclosed to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group EntityParent;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination delay or similar payment, postpone the payment of accounts payable and other Liabilities or any bonus accelerate accounts receivable and invoicing or similar payment (other than payment in respect product delivery outside the Ordinary Course of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group EntityBusiness;
(xi) (A) materially increase any Compensation or employee benefits, whether conditionally or otherwise, provided to any Company Associate, other than in the Ordinary Course of Business or (B) adopt, amend or terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Company Plan, except to the extent required to comply with applicable Law or as requested by the existing terms Parent or as contemplated by this Agreement;
(xii) terminate any Key Executive or any other officer of such Benefit Planany Acquired Company, trust other than for “cause”, or other funding arrangementhire any new officers of any Acquired Company;
(xiii) implement or adopt any change in its accounting methods, policies, principles or procedures, except as required by Law or by IFRS;
(xiv) settle, agree to settle or waive any pending Action (A) involving potential payments to any Acquired Company or by any collective bargaining agreement, by any written employment agreement existing on Acquired Company in excess of $250,000 individually or $1,000,000 in the date of this Agreement, aggregate or by applicable Law(B) so as to admit liability or consent to non- monetary relief;
(xv) (A) adopt a plan file any amended Tax Return; change or revoke any material Tax election; change any method of complete accounting for material Tax purposes; settle any Action in respect of material Taxes; or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise Contract in respect of Taxes with any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group EntityGovernmental Authority;
(xvi) renew enter into any new line of business that is different from the Business or discontinue any line of business or any business operations;
(xvii) terminate, materially amend or waive any material rights under any Material Contract or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute be a Material Contract, Contract if entered into prior to the Original Agreement Date or the date hereof other than Contracts specifically relating to actions falling with customers or suppliers entered into in the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) Ordinary Course of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material ContractBusiness;
(xviii) enter into make any Contractgift or other gratuitous payment, other than immaterial gifts made in connection with business development in the ordinary course Ordinary Course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;Business;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including make a payment with respect to any Azur IP Rights;Guarantee of an obligation of any Person other than an Acquired Company; or
(xx) adopt agree to do take any change, other than as required action prohibited by IFRS, in its accounting policies, procedures or practices;clauses (i) through (xx) of this Section 6.2(b).
(xxic) license Notwithstanding the foregoing or permit anything to the contrary in this Agreement, the Parties acknowledge and agree that (i) nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s operations for purposes of the HSR Act or any rights other applicable Law prior to lapse in the expiration or termination of any Material Azur IP Rights;
applicable waiting period under the HSR Act; (Aii) make any change in any annual accounting period or adopt or change a method no consent of accounting for Tax purposes, except as Parent will be required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating with respect to any of matter to the Azur Group Entities, surrender extent the Company reasonably believes that obtaining such consent may violate any right Antitrust Law or any other applicable Law and (iii) the Parties have agreed that certain Company Associates will be terminated by the applicable Acquired Company that employs such Company Associate prior to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date and all obligations and Liabilities arising as a result of such terminations, including all severance, accrued vacation, paid time off and paid sick leave, whether arising pursuant to an employment agreement or decreasing any Tax attribute of any Azur Group Entity or otherwise (collectively, the Jazz Group Entities existing on “Termination Obligations”), shall be paid by the Closing Date;
(xxiii) lend money applicable Acquired Company prior to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingClosing.
Appears in 1 contract
Samples: Agreement and Plan of Merger
Conduct of the Business. Azur agrees, (a) Except as to itself and its Subsidiaries, thatotherwise expressly contemplated by this Agreement, during the Pre-period from the date hereof to the Closing PeriodDate, the Member shall cause Seller to, and Seller shall conduct the Business and its operations in the ordinary course, consistent with past practice, and (i) use reasonable best efforts to maintain its assets and properties and to preserve its current relationships with customers, employees, suppliers and others having business dealings with it, (ii) use reasonable best efforts to perform and comply with its Material Contracts and to comply with applicable Laws, (iii) maintain its Books and Records in the usual, regular and ordinary manner, on a basis consistent with past practice, and (iv) use reasonable best efforts to preserve the goodwill and ongoing operations of the Business.
(b) Without limiting the generality of the foregoing, except as set forth in Section 5.4 of the Azur Disclosure Scheduleotherwise expressly contemplated by this Agreement, as contemplated in Schedule 1, as required by this Agreement Law or with the Related Agreementsconsent of Buyer, as reasonably necessary to effect during the Reorganization (subject to and in accordance with this Agreement and period from the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, date hereof to the extent consistent therewith (and subject to Closing Date, the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and Member shall cause each of the Azur Group Entities Seller not to, directly or indirectly do, or commit to do, any of the followingand Seller shall not:
(i) declare, accrue, set aside modify or pay amend any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entitythe Organizational Documents;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell the issuance of, any shares Equity Securities of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this AgreementSeller;
(iii) amend split, combine, redeem or reclassify, or purchase or otherwise alter (or propose acquire any amendment or alteration to) the Governing Documents Equity Securities of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group EntitySeller, as applicable;
(iv) effect declare or become a party to pay any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, non-cash dividend or make any investment non-cash distribution in any equity securities respect of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Personits Equity Securities;
(v) sell, lease, license, assign, transfer, abandon, convey incur or otherwise dispose of suffer to exist any assets, securities, rights or property of any Azur Group Entity, other than in each case Indebtedness except (Ax) sales of inventory and equipment for working capital borrowings incurred in the ordinary course of business and consistent with past practicespractice, or (By) not individually as listed in excess Section 6.1(b)(v) of $500,000the Disclosure Schedule;
(vi) incur amend, renew, terminate or waive any Indebtedness, enter into Material Contract or any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesprovision thereof;
(vii) create enter into any new Contract that would have been a Material Contract if it had existed on the date hereof;
(viii) enter into any Contract that purports to limit, curtail or permit restrict the creation Business, or the kinds of businesses in which it or its existing or future Affiliates may conduct, or the Persons with whom it or its existing or future Affiliates can compete or to whom it or its existing or future Affiliates can sell products or deliver services, or the acquisition of any Lien business;
(other than ix) acquire (x) by merging or consolidating with, or by purchasing a Permitted Lien) on any substantial equity interest in or substantial portion of the assets of, or by any other manner, any Person or (y) any assets that are material, individually or in the aggregate, except purchases of any Azur Group Entities other than inventory and fixed assets in the ordinary course of business and consistent with past practicespractice;
(viiix) except divest, sell, transfer, lease, license, mortgage, pledge or otherwise dispose of, or encumber any asset, other than the sales of products or services in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entitypractice;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entitymaterial reorganization;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (Axii) enter into, adopt or permit amend any of employee benefit plan, agreement, policy or program that, if in effect on the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) date of this Section 5.4(a)Agreement, or (B) modify in any material respectwould be a Plan, amend in any material respect or terminate any Material ContractPlan, except to the extent required by Law;
(xviiia) enter into terminate the services of any Contract, Business Employees other than for cause or (b) make any changes in wages, salary or other compensation with respect to Business Employees, except, in each case, in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) to the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as extent required by applicable Law, ;
(Bxiv) make or change any Tax election, (C) file change an annual accounting period, adopt or amend change any Tax Return or (D) accounting method, file any amended Tax Return, enter into any closing agreementagreement with respect to Taxes, settle any Tax claim or Tax assessment relating to any of the Azur Group EntitiesBusiness, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Business, or take any Azur Group Entity other similar action relating to the filing of any Tax Return or the payment of any Tax;
(in each case other than electionsxv) fail to file any Tax Return or make any Tax payment, filingsincluding any estimated Tax payment, settlements, closing agreements, extensions that would be filed or waivers made in the ordinary course of business consistent with past practicespractice or required by Law;
(xvi) if such election, adoption, change, amendment, agreement, settlement, surrender, consent change its accounting policies or other action would have procedures except to the effect of increasing extent required to conform with GAAP;
(xvii) change its fiscal year;
(xviii) settle or compromise any pending or threatened Action;
(xix) make any capital expenditures;
(xx) waive or fail to enforce any rights under the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute confidentiality provisions of any Azur Group Entity Contracts entered into with respect to the Business;
(xxi) fail to pay its Liabilities when due or perform its material obligations when due, in each case in the Jazz Group Entities existing on ordinary course and in a manner consistent with past practice;
(xxii) take any action or omit to take any action which would cause any representation or warranty made by the Closing DateMember or Seller in this Agreement or any Ancillary Document to be or become untrue in any material respect (disregarding for these purposes any qualifications as to “materiality” or “material adverse effect” (or any correlative term contained therein);
(xxiii) lend money to sell, transfer, contribute, pledge, distribute or otherwise dispose of or incur any person (except for business expenses to its current employees Encumbrance on any Equity Securities in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;Seller; or
(xxiv) make any capital expendituresauthorize, except for capital expenditures thatagree, when added resolve or consent to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Quality Distribution Inc)
Conduct of the Business. Azur agrees, as to itself Sellers covenant and its Subsidiaries, agree that, during between the date of this Agreement and the Closing Date, except as expressly contemplated by any other provision of this Agreement, unless reasonably necessary to complete the Pre-Closing PeriodRestructuring or unless Purchaser shall otherwise consent in writing (which consent shall not be unreasonably withheld):
(a) Sellers shall cause the Company and the Subsidiaries to conduct their businesses only in the Ordinary Course of Business.
(b) Sellers shall cause the Company and the Subsidiaries to use commercially reasonable efforts to preserve intact its business organization, except as set forth to keep available the services of their current officers, employees, consultants and agents and to preserve the relations and goodwill with suppliers, customers, landlords, creditors, employers, agents and other Persons with whom the Company and the Subsidiaries have business relations.
(c) Sellers shall cause the Company and the Subsidiaries (i) to conduct their operations in Section 5.4 compliance in all material respects with all Laws; (ii) to maintain in effect all Permits material to the operation of their respective businesses; and (iii) to give prompt notice to Purchaser of (A) any notice received by the Company or any Subsidiary from any Governmental Body or other Person regarding any current, pending or proposed Action relating to the Company or any Subsidiary; (B) any proposed imposition of any Order relating to the Company or any Subsidiary; (C) the revocation, termination, suspension or limitation of any Permit of the Azur Disclosure ScheduleCompany or any Subsidiary; or (D) any other actual, pending or, to the Knowledge of Sellers, threatened event or Action that would reasonably be expected to materially and adversely affect the business, assets, liabilities, capitalization, prospects, condition (financial or otherwise) or results of operations of the Company or any Subsidiary.
(d) By way of amplification and not limitation of the foregoing, as contemplated reflected in Schedule 1, 6.1(d) or as required by this Agreement Law, Sellers shall not permit the Company or any Subsidiary to, between the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with date of this Agreement and the Related Agreements)Closing, directly or indirectly, do, or as otherwise agreed propose to in writing by Jazz do, any of the following, without the prior written consent of Purchaser (such agreement which consent shall not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:):
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem amend or otherwise acquire change any shares of capital stock their organizational documents or other securities of, or other ownership interests in, any Azur Group Entityclassification for income Tax purposes;
(ii) issuecreate, deliver, pledge, encumber, sell assume or authorize permit to sell exist any shares new Encumbrance other than (A) the interests of capital stock lessors under operating leases entered into in the Ordinary Course of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this AgreementBusiness and (B) Permitted Encumbrances;
(iii) amend issue, sell, pledge, dispose of, grant, encumber, or otherwise alter (authorize the issuance, sale, pledge, disposition, grant or propose encumbrance of, the Membership Interests or any amendment other equity securities of the Company or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group EntitySubsidiary, other than Permitted Encumbrances;
(iv) effect declare, set aside, make or become a party to pay any Contract relating to a Competing Transaction distribution payable in cash, equity securities, property or otherwise, with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split any Membership Interests or similar transaction with respect to each Azur Group Entity, or make any investment in any other equity securities of the Company or any Subsidiary (other Person, including than (A) distributions to pay income Taxes in accordance with historical practices and (B) dividends or distributions by any joint venture, or acquire the stock or all or substantially all Subsidiary of the assets or rights of any other Person or any division of any other PersonCompany);
(v) sellreclassify, leasecombine, licensesplit, assignsubdivide or redeem, transfer, abandon, convey purchase or otherwise acquire, directly or indirectly, the Membership Interests or any other equity securities of the Company or any Subsidiary;
(vi) (A) acquire or dispose of (including by merger, consolidation or acquisition or disposition of equity securities or assets) any assets, securities, rights interest owned by the Company or property any Subsidiary in any Person or any assets of the Company or any Azur Group EntitySubsidiary, other than in each case (A) sales the sale of inventory and equipment disposal of obsolete assets in the ordinary course Ordinary Course of business and consistent with past practices, or Business; (B) incur any Company Indebtedness, except for Company Indebtedness incurred in the Ordinary Course of Business not individually in excess of $500,000;
; (viC) incur make any Indebtednessloans or advances to any Person; (D) commit to make or make capital expenditures, other than pursuant to previously budgeted projects or consistent with past practice; or (E) enter into into, amend or terminate any new or amend existing facilities relating to IndebtednessMaterial Agreement, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesthan in the Ordinary Course of Business;
(vii) create license, sell, transfer or permit the creation of otherwise dispose of, in whole or in part, any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities Business Proprietary Rights other than in the ordinary course Ordinary Course of business and consistent with past practicesBusiness;
(viii) except increase the compensation payable or to become payable to contractors, managers, officers or employees of the Company or any Subsidiary, other than in the ordinary course Ordinary Course of business and consistent Business in accordance with past practicesexisting personnel policies;
(ix) make offers to any contractors, managers, officers or employees of the Company or any Subsidiary for employment with any Person other than Purchaser, the Company or any Subsidiary after Closing, except for those individuals set forth on Schedule 6.1(d)(ix) of the Disclosure Schedule;
(x) grant any severance or termination pay to, or enter into any employment or severance agreement with, any officer or other employee of the Company or any Subsidiary, other than in the Ordinary Course of Business or except as otherwise contemplated herein;
(xi) establish, adopt, enter into or adopt amend any new, benefit provided under any collective bargaining agreement or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement)Plan, other than as required by Law;
(ix) except to the extent required by the terms of any such collective bargaining agreement or Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable required by Law in order to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than qualify for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000favorable Tax treatment;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute make any material amount to change in the accounting policies or procedures applied in the preparation of the Interim Financial Statements or the Audited Financial Statements or reduce any trust or other arrangement funding any Benefit Planreserves in the Interim Financial Statements, except to the extent required by GAAP;
(xiii) cancel, forgive, release, discharge, waive or accelerate the existing terms collection of such Benefit Plan, trust any accounts receivable or other funding arrangement, by any collective bargaining agreement, by similar asset or right with respect to the Company or any written employment agreement existing on the date of this AgreementSubsidiary, or by applicable Lawagree to do any of the foregoing, except in the Ordinary Course of Business;
(xiv) sell or factor any accounts receivable of the Company or any Subsidiary;
(xv) pay, discharge or satisfy any Liability, other than the payment, discharge or satisfaction, in the Ordinary Course of Business, of Liabilities reflected or reserved against in the Audited Financial Statements and Interim Balance Sheet (Aincluding payoffs of Company Indebtedness) adopt a plan or subsequently incurred in the Ordinary Course of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group EntityBusiness;
(xvi) compromise, settle or agree to settle any Action, other than compromises, settlements or agreements in the Ordinary Course of Business that involve only the payment of monetary damages not in excess of $500,000 individually, in any case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any of its Subsidiaries;
(xvii) make or change or revoke any material Tax election (including an entity classification election under Treasury Regulation Section 301.7701-3) or settle or compromise any material Tax Liability, other than in the Ordinary Course of Business, change its Tax year, amend any Tax Returns, or make any election, adopt any accounting method or fiscal year, or take any position in any Tax Returns relating to the Company or any Subsidiary that is inconsistent with the past practices of the Company and its Subsidiaries;
(xviii) renew or enter into any Contract with any non-compete compete, exclusivity, non-solicitation or exclusivity provisions similar Contract that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter intolimit, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course operations of business the Company and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;its Subsidiaries; or
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response agree to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to take any of the Azur Group Entities, surrender any right to claim a refund actions described in subsections (d)(i) through (d)(xviii) of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit to do any of the foregoingthis Section 6.1.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Fortune Brands Home & Security, Inc.)
Conduct of the Business. Azur agrees, as to itself and its Subsidiaries, that, during From the Pre-Closing Period, except as set forth in Section 5.4 date hereof until the earlier of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with termination of this Agreement and the Related Agreements)Closing Date, or except (i) as otherwise agreed to set forth on Schedule 5.01 of the Disclosure Schedules, (ii) if Parent shall have consented in writing by Jazz (such agreement which consent shall not to be unreasonably withheld, conditioned or delayed)) or (iii) as otherwise contemplated by this Agreement, (x1) each of the Azur Group Entities Company shall conduct its business, and shall cause its Subsidiaries to conduct their business and operations solely in the ordinary course of business and consistent with past practices and, practice in all material respects; provided that the Company may use available cash to repay any Indebtedness or to make cash dividends on or prior to the extent consistent therewith Closing; (2) the Company shall, and subject to the restrictions set forth in this Section 5.4(a))shall cause its Subsidiaries to, (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve intact their businesses and maintain existing relations and goodwill their relationships with Governmental Authorities, employees, material customers, brokers, suppliers and other Persons others having material business dealings with which them in all material respects and (3) the Company shall not, and shall not permit any of its Subsidiaries to:
(a) except for issuances as may result from the exercise of Options or the conversion of Preferred Stock, or for issuances of replacement certificates for shares of Company Stock and except for issuance of new certificates for shares of Company Stock in connection with a transfer of Company Stock by the holder thereof, issue, sell, grant or deliver any of its or any of its Subsidiaries’ equity securities or issue, sell or grant any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its or any of its Subsidiaries’ equity securities;
(b) except for the cancellation of the Options in accordance with this Agreement, redeem, repurchase or otherwise acquire, any equity securities of the Company;
(c) effect any recapitalization, reclassification, equity split, combination or like change in its capitalization;
(d) amend its Organizational Documents or any of the Azur Company’s Subsidiaries’ organizational documents;
(e) redeem or purchase any of its or any of its Subsidiaries’ equity interests (other than with respect to the repurchase of Company Stock (including any Options) from former employees of a Group Entities has significant Company pursuant to existing agreements or any Company Employee Benefit Plan);
(f) sell, assign or transfer any material portion of its tangible assets, except in the ordinary course of business relations consistent with past practice and except for sales of obsolete assets or assets with de minimis value;
(zg) subject sell, assign, transfer or exclusively license any material patents, trademarks, trade names or copyrights, except in the ordinary course of business consistent with past practice;
(h) (i) enter into any Material Contract, except for Contracts that are Material Contracts solely under Section 3.10(a)(viii) and are reasonably expected to applicable Law as agreed generate annual revenue of less than $5,000,000; (ii) materially amend or modify any Material Contract set forth on Schedule 5.01(h) in good faith by counsel a manner that would be reasonably expected to Jazzresult in an increase in expenses or decrease in revenue under such Contract of greater than $2,000,000 on an annual basis; (iii) materially amend or modify any Material Contract with a party other than those set forth on Schedule 5.01(h), Azur shall not except for amendments to Contracts that are Material Contracts solely under Sections 3.10(a)(vii) or (viii) and shall cause each for which such amendments or modifications would be reasonably expected to result in an increase in expenses or decrease in revenue under such Contract of the Azur Group Entities not toless than $500,000 on an annual basis; (iv) voluntarily terminate any Material Contract; or (v) release, directly or indirectly dowaive any material rights under, or commit to dodischarge any other party of any material obligation under, any of the following:Material Contract;
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securitiesinvestment in, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests inloan to, any Azur Group Entityother Person, in excess of $500,000, in the aggregate, except in the ordinary course of business or pursuant to any existing agreement or budget;
(iij) issuefail to make capital expenditures in the amounts set forth for capital expenditures in accordance with the Company’s budget as of the date of this Agreement, deliverin excess of $500,000 in the aggregate, pledge, encumber, sell other than in the ordinary course of business;
(k) make any capital expenditures or authorize to sell any shares commitments therefor in excess of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests$1,000,000, except with respect to exercise for such capital expenditures or commitments therefor that are reflected in the Company’s budget as of Azur Options outstanding prior to the date of this Agreement;
(iiil) amend or otherwise alter (or propose enter into any amendment or alteration to) other material transaction with any of its managers, officers and employees outside the Governing Documents ordinary course of business except pursuant to any Azur Group Entity or amend any terms of agreement set forth on the outstanding securities of any Azur Group EntityDisclosure Schedules;
(ivm) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities except as required under the terms of any other PersonCompany Employee Benefit Plan, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales grant or announce any incentive awards or any increase in the salaries or other compensation and benefits (other than bonuses) payable by a Group Company to any of inventory its employees, officers, directors or other service providers (other than immaterial increases in the salaries or other compensation and equipment benefits payable to employees, officers, directors or other service providers whose total annual compensation does not exceed $200,000 in the ordinary course of business and consistent with past practicespractice; provided, or that such increases in the aggregate do not exceed $500,000); (B) grant or increase any bonus to any employee, officer, director or other service provider except for bonuses paid in full prior to the Closing; (C) materially increase the benefits under any Company Employee Benefit Plan; (D) enter into or amend any employment, change in control, severance, retention or similar contract with any officer, employee, consultant or other agent of any Group Company (other than customary employment agreements in the ordinary course of business consistent with past practice or offer letters providing for at-will employment without post-termination obligations, in each case with newly-hired employees who are hired in the ordinary course of business consistent with past practice) or pay to any such individual any amount not individually otherwise due; (E) terminate or materially amend any Company Employee Benefit Plan or adopt any arrangement for the current or future benefit or welfare of any officer or employee of any Group Company that would be a Company Employee Benefit Plan if it were in excess existence as of $500,000;
the date hereof; (viF) incur any Indebtedness, enter into any new collective bargaining agreement; or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(viiG) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practicespractice, hire or terminate any employee;
(viiin) except settle or compromise any Action if (A) the amount payable by any Group Company in connection therewith would exceed $500,000, (B) if such settlement would be reasonably likely to have a material and adverse effect on the post-Closing operations of the business of any Group Company or (C) such settlement, compromise or release contemplates or involves any admission of wrongdoing or misconduct or provides for any relief or settlement other than the payment of money;
(i) incur any Indebtedness (other than Funded Debt) outside of the ordinary course of business, (ii) incur any Funded Debt (other than Funded Debt of the types set forth in clauses (vii) through (xii) of the definition thereof in the ordinary course of business and consistent with past practices, enter into or adopt any newpractice), or amend (iii) issue any debt securities or terminate assume, grant, guarantee or endorse, or otherwise become responsible for, the obligations of any existing, Benefit Plan Person (including other than a Group Company);
(p) create or incur any trust or other funding arrangement)Lien on any asset, other than Permitted Liens;
(q) make any material loan, advance or capital contribution to or investment in any Person other than loans, advances or capital contributions to or investments in its Subsidiaries in the ordinary course of business consistent with past practice;
(r) acquire any real property or any direct or indirect interest in any real property;
(s) merge or consolidate with any other Person or acquire an amount of stock or assets of any other Person in excess of $500,000 or effect any business combination, recapitalization or similar transaction (other than the Merger);
(t) make any material change to its accounting methods, policies or practices or practices with respect to the maintenance of books of account and records, except as required by GAAP or applicable Law;
(ixu) except make, change or revoke any material Tax election, change any material Tax accounting method, file any material amended Tax Return, settle or compromise any audit or other proceeding relating to a material amount of Tax, enter into any “closing agreement” within the extent required by meaning of Section 7121 of the terms of any Benefit Plan Code (or any Contract with an Independent Contractor similar provision of state, local or consultant non-U.S. Law), apply for or request any Tax ruling, or surrender any right to claim a material Tax refund;
(or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (Av) make any new grant material change in the policies of the Company or awardany Subsidiary of the Company regarding the payment of accounts payable, the collection of accounts receivable, including materially accelerating the receipt of amounts due with respect to any accounts receivables, or vestmaterially lengthening the period for payment of accounts payable, accelerate or otherwise amend fail to maintain customary levels of working capital for the operation of the business;
(w) forgive, cancel or compromise any existing grantmaterial debt or claim, benefit or awardwaive, under release or assign any Benefit Planright or claim of material value, (B) increase other than in the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director ordinary course of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entitybusiness consistent with past practice;
(x) adopt or enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement a plan or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, Company’s Subsidiaries (other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (vMerger), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxvy) authorize any of, or agree or commit to do any of the foregoingforegoing actions. No exception set forth in Section 5.01 that permits any action or omission to take an action that would otherwise be prohibited under any clause of Section 5.01 shall be deemed to eliminate the need to obtain consent under any other clause of Section 5.01 that is applicable to such action or omission to take an action. Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s or any of its Subsidiaries’ operations prior to the Closing to the extent in violation of applicable Law.
Appears in 1 contract
Conduct of the Business. Azur agrees(a) Except as set forth on the Conduct of the Business Schedule, as to itself from the date hereof until the Effective Time, the Company shall conduct its and its Subsidiaries, that, during the Pre-Closing Period, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its ’ business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practicespractice. Consistent with the foregoing, the Company shall, and shall cause it Subsidiaries to, (i) if such electionkeep and maintain the assets of the Company and its Subsidiaries in good operating condition and repair, adoptionordinary wear and tear excepted, change(ii) use commercially reasonable efforts consistent with past practice to (A) preserve the goodwill of and existing relationships with the suppliers, amendmentcontractors, agreementlicensors, settlementemployees, surrendercustomers and others having business relations with the Company or any of its Subsidiaries, consent (B) use commercially reasonable efforts to retain the services of its key employees and (C) perform in all material respects its obligations under the contracts listed on the Contracts Schedule.
(b) From the date hereof until the Effective Time, except as otherwise contemplated by this Agreement or consented to in writing by the Purchaser, the Company shall not, and shall not permit its Subsidiaries to: (i) issue, sell, pledge, dispose or deliver, or agree to issue, sell, pledge, dispose of or deliver any shares of its or any of its Subsidiaries’ capital stock (other than with respect to the exercise of Options outstanding as of the date hereof) or any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any shares of its or any of its Subsidiaries’ capital stock; (ii) effect any recapitalization, reclassification, stock dividend, stock split or like change in its capitalization; (iii) amend its or any of its Subsidiaries’ articles of incorporation or bylaws; or (iv) except pursuant to any agreement existing as of the date hereof concerning the purchase of any shares of Company Stock or any Options, make any redemption or purchase of any shares of its or any of its Subsidiaries’ capital stock; (v) enter into, adopt or amend any employment, severance, change in control, retention, special pay arrangement with respect to termination of employment or other action would have similar plans or arrangements with or for the effect benefit of increasing the Tax liability any Employees of the Azur Group Entities Company or its Subsidiaries, except (with respect to each of the Jazz Group Entities for foregoing in this subsection (v)) to the extent such payments would be Transaction Expenses (it being understood that prior to entering into any period ending after such arrangement, the Closing Date Company and its Subsidiaries shall notify the Purchaser that it intends to enter into such an arrangement); (vi) increase the salary, incentive compensation or decreasing any Tax attribute benefits of any Azur Group Entity Employee of the Company or the Jazz Group Entities existing on the Closing Date;
its Subsidiaries except, (xxiiiA) lend money to any person (except for business expenses to its current employees annual merit increases or non-material increases in benefits in the ordinary course of business and consistent with past practice of Employees of the Company or its Subsidiaries and (B) as required by Applicable Law or any Collective Bargaining Agreements; (vii) adopt, enter into or amend or commit themselves to adopt, enter into or amend any Company Benefit Plan or Employee Agreement except for amendments required by Applicable Law or any Collective Bargaining Agreements; (viii) make or rescind any express or deemed election relating to Taxes, make any material change to the accounting methods (including Tax accounting methods), principles or practices, except as may be required by GAAP (in which case, the Company will promptly notify the Purchaser), settle or compromise any material Tax Liability or agree to a waiver or extension of a statute of limitations with respect to the assessment or determination of Taxes; (ix) file or guarantee the indebtedness cause to be filed any amended material Tax Return or file or cause to be filed any material claim for refund of any Person;
Taxes paid; (xxivx) make any capital expendituresdistributions or other payments of any Cash after the close of business on the day immediately prior to the Closing Date; (xi) incur any Funded Indebtedness other than Funded Indebtedness outstanding as of the close of business on the day immediately prior to the Closing Date; (xii) enter into any contract or other agreement with any labor union; (xiii) adopt a plan of liquidation, dissolution, merger, consolidation or other reorganization; (xiv) make any loan or advance to any of its officers, directors, employees or consultants (other than in the ordinary course of business consistent with past practice) or make any other loan or advance; (xv) make any acquisition of an equity interest in, or all or any material part of the assets, properties, or business or any other Person, other than purchases of inventory in the ordinary course of business consistent with past practice; (xvi) sell, assign, license, transfer, lease or otherwise dispose of material assets except for capital expenditures that, when added the sale of inventory in the ordinary course of business consistent with past practice; or (xvii) take or agree to all other capital expenditures made on behalf take any action that would reasonably be expected to prevent the satisfaction of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit any condition to do any of the foregoingclosing set forth in Article III.
Appears in 1 contract
Conduct of the Business. Azur agrees(a) During the period from the Effective Date to the Closing Date, Seller shall cause the Company to (i) conduct the Business in the Ordinary Course of Business, (ii) use Reasonable Best Efforts to preserve its business organizations, maintain and preserve the tangible assets of the Company in their current condition and repair (ordinary wear and tear excepted), (iii) make capital expenditures in accordance with Schedule 7.1, (iv) keep available to Purchaser the services of the employees of the Company necessary to operate the North Xxxxxxxx, New York facility as to itself currently operated and (v) preserve for Purchaser the goodwill of its Subsidiaries, thatcustomers and suppliers. Notwithstanding the immediately preceding sentence, during the Pre-period from the Effective Date to the Closing PeriodDate, except (x) as set forth in Section 5.4 of the Azur Disclosure Schedulemay be approved by Purchaser (such approval not to be unreasonably withheld or delayed), (y) as is otherwise permitted, contemplated in Schedule 1, as or required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing required by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations Law and (z) subject to applicable Law as agreed set forth on Schedule 7.1, Seller, in good faith by counsel to Jazzrespect of the Company, Azur shall not not, and shall cause each of the Azur Group Entities Company not to, directly or indirectly do, or commit to do, any of the following:
(iA) declareAdopt or amend any collective bargaining agreement, accrueother than (1) the New Labor Contract or (2) as required by law or (B) adopt or amend in any material respect any Employee Benefit Plan, set aside other than (1) in connection with the adoption or pay any dividend amendment of an Employee Benefit Plan that applies generally to employees of Seller or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entityits Affiliates and (2) as required by law;
(ii) issueGrant to any employee any increase in compensation or benefits, deliverexcept in the Ordinary Course of Business and consistent with the Company's applicable policies and past practices or except as required under any existing Contracts;
(iii) Issue, sell, pledge, encumber, sell dispose of or authorize otherwise subject to sell any Encumbrance (A) any shares of capital stock of or other equity interests in any Azur Group Entitythe Company, or any options, warrants, convertible securities convertible into any such shares of capital stock or other equity interests, or rights of any rights, warrants or options kind to acquire any such shares of capital stock shares, or any other equity interests, except with respect to exercise of Azur Options outstanding prior to ownership interest in the date of this Agreement;
Company or (iiiB) amend any properties or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms assets of the outstanding securities Company, other than (1) sales or transfers of any Azur Group EntityInventory in the Ordinary Course of Business or (2) sales of other assets that do not exceed $100,000 in the aggregate;
(iv) effect Make or become a party incur any capital expenditure that is not (A) paid for prior to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Personthe Closing Date, including any joint venturecapital expenditures spent in the Ordinary Course of Business, (B) made in accordance with Schedule 7.1 or acquire (C) otherwise currently approved in writing, provided, that they do not exceed $100,000 in the stock or all or substantially all of the assets or rights of any other Person or any division of any other Personaggregate;
(v) sellDeclare, leaseset aside, licensemake or pay any dividend or other distribution, assignpayable in cash, transferstock, abandon, convey property or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practicesotherwise, or (B) not individually in excess make any other payment on or with respect to any of $500,000its capital stock;
(vi) incur Reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any Indebtedness, enter into of its capital stock or make any new or amend existing facilities relating other change with respect to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesits capital structure;
(vii) create Acquire any corporation, partnership, limited liability company, other business organization or permit the creation division thereof or any material amount of assets, or enter into any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practicesjoint venture, strategic alliance, exclusive dealing, noncompetition or similar contract or arrangement;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt Adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company, or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entityotherwise alter the Company's corporate structure;
(xviix) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter intoChange, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contractits accounting methods;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence Compromise or settle any Tax Claim or compromise any litigationassessment (including those matters disclosed on Schedule 4.17(d)), or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend change any annual Tax accounting period, change any Tax Return accounting method, or (D) enter into file any closing agreementamended Tax returns, settle any Tax claim or assessment relating to any of which would be reasonably expected to adversely affect the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending Company after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiiixi) lend money (A) terminate any Material Contract, (B) modify or amend any Material Contract or otherwise assume any additional obligations in excess of $75,000 individually and $200,000 in the aggregate pursuant to such Material Contract or (C) enter into any person new Contract involving annual liability or expenditure in excess of $75,000 individually and $200,000 in the aggregate, other than (1) Contracts relating to capital expenditures permitted under subsection (iv) above and (2) purchase orders entered into in the Ordinary Course of Business;
(xii) Do any act or fail to do any act which could result in the termination, expiration, revocation, suspension, nonrenewal or adverse modification of any of the Permits;
(xiii) Waive any material right under a Material Contract;
(xiv) Accelerate the collection of any of the accounts or notes receivable of the Company except in the Ordinary Course of Business;
(xv) Delay the payment of any of the accounts or notes payable except for business expenses to its current employees compromises or settlements of such amounts in the ordinary course Ordinary Course of business Business;
(xvi) Settle any outstanding Claims (other than Tax Claims and Insurance Claims);
(xvii) Commence any litigation, arbitration or other proceeding;
(xviii) Negotiate or institute any new customer programs relating to trade promotions or allowances, customer deductions or coupons, except in the Ordinary Course of Business; provided, that the Company agrees to meet with Purchaser on a weekly basis to apprise Purchaser of matters regarding such customer programs;
(xix) Enter into or consummate any transaction or agreement with Seller, Parent or any of their Affiliates other than in the Ordinary Course of Business consistent with past practices) or guarantee the indebtedness of any Personpractice;
(xxivxx) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf Change the utilization of the Azur Group Entities services provided by Kraft under the Kraft Transition Services Agreement such that they are no longer consistent with the practices of the Company during the Prethree-Closing Periodmonth period ended November 30, do not exceed $1 million2006; or
(xxvxxi) agree Agree, whether or commit not in writing, to do any of the foregoing.
(b) During the period from the Effective Date until the earliest of the termination of this Agreement in accordance with (i) ARTICLE XII, (ii) the Closing Date and (iii) May 31, 2007, Parent agrees that it will not, without the prior written consent of Purchaser, permit, cause or accelerate the consummation of its share capital restructuring pursuant to which it will eliminate its dual-class stock structure and convert each outstanding share of Parent's Class A stock and each outstanding share of Parent's Class B stock into one share of common stock, unless such restructuring is necessary to effectuate the transactions contemplated by a Superior Proposal (as defined below) or other transactions arising out of Permitted Activities in accordance with Section 7.11.
Appears in 1 contract
Samples: Stock Purchase Agreement (Coolbrands International Inc)
Conduct of the Business. Azur agreesThe Cosmo Parties agree, as to itself themselves and its their respective Subsidiaries, that, during from the Pre-Closing Perioddate hereof until the Effective Time, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as expressly required by this Agreement or the Related Agreements(including (A) actions taken pursuant to Section 5.2, as reasonably necessary to effect the Reorganization (B) subject to and in accordance with this Agreement and Section 5.3, transactions required by the Related AgreementsReorganization, or (C) as required by applicable Law), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed)Salix, (x) each of the Azur Group Entities Business shall conduct its business and operations solely be conducted in the ordinary course Ordinary Course of business and consistent with past practices andBusiness, (y) to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a5.6(a)), the Cosmo Parties will (yand will cause their Subsidiaries to) each of the Azur Group Entities will use commercially all reasonable best efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities Cosmo Parties or their respective Subsidiaries and Affiliates has significant business relations in respect of the Business and (z) subject to applicable Law as agreed in good faith by counsel to JazzSalix, Azur the Cosmo Parties shall not and shall cause each of the Azur Group Entities their respective Subsidiaries and Affiliates not to, directly or indirectly do, or commit to do, any of the following:
(i) declareOther than pursuant to the Reorganization as set forth in Schedule A, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, Cosmo or any Azur of the Tech Group EntityEntities;
(ii) Other than pursuant to the Reorganization as set forth in Schedule A, issue, deliver, pledge, encumber, sell encumber or authorize to sell any shares of capital stock of or other equity interests in any Azur Tech Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) other than pursuant to the Reorganization as set forth in Schedule A, amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Tech Group Entity or amend any terms of the outstanding securities of any Azur Tech Group Entity;
(iv) effect or become a party Other than pursuant to any Contract relating to a Competing Transaction the Reorganization as set forth in Schedule A, with respect to each Azur the Business and/or the Tech Group EntityEntities, recapitalizationmerge or consolidate with any other Person, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Tech Group Entity, Entity other than in each case (accordance with the Reorganization as set forth in Schedule A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) with respect to the Tech Group Entities, incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiessecurities other than in accordance with the Reorganization as set forth in Schedule A;
(vii) create or permit the creation of any Lien on (other than a Permitted Liena) on an Acquired Asset or any asset of the assets of any Azur Group Entities Business other than in the ordinary course Ordinary Course of business Business or that could not materially and consistent with past practicesadversely affect the ability to conduct the Business following the Closing in the same manner as currently conducted, or (b) the equity of any of the Tech Group Entities;
(viii) except in the ordinary course Ordinary Course of business Business and consistent in accordance with past practicesthe Reorganization as set forth in Schedule A, enter into or adopt any new, or amend or terminate any existing, Benefit Employee Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant grants or awardawards to, or vest, accelerate or otherwise amend modify any existing grant, benefit or awardawards made to, under any Benefit Plan, (B) or increase the compensation payable or to become payable to any Employeeof the officers, Independent Contractor, consultant (directors or similar relationship) or director employees of any Azur Tech Group Entity (C) Entities or pay any severance or bonus not otherwise due to any Employeeof the officers, current directors or former Independent Contractor, consultant (or similar relationship) or director employees of any Azur Tech Group EntityEntities;
(x) enter into any Contract pursuant with respect to which any Azur the Tech Group Entity may become obligated to make any severanceEntities or the Business, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiiixi) with respect to the Tech Group Entities or the Business, enter into any new collective bargaining agreement or agreement with a trade union;
(xivxii) with respect to the Tech Group Entities or the Business, contribute any material amount to any trust or other arrangement funding any Benefit Employee Plan, except to the extent required by the existing terms of such Benefit Employee Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xvxiii) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than the Reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Tech Group Entity;
(xvixiv) renew or (except in connection with the Reorganization as set forth in Schedule A) enter into any Contract with any non-compete compete, exclusivity or exclusivity provisions similar agreement that would contractually restrict or limit the operations of any Azur the Tech Group Entity in any material respectEntities or, after the Effective Time, of Salix or its Subsidiaries;
(xviixv) modify, amend or terminate any Acquired Contract except in connection with the Reorganization as set forth in Schedule A;
(xvi) with respect to the Tech Group Entities or the Business, enter into any contract other than (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling in connection with the exceptions to the covenants Reorganization as set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), Schedule A or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course Ordinary Course of business and consistent with past practices Business and that does not require (x) a term in excess of one year or (y) payments by any Azur Tech Group Entity in excess of $500,000 per annum100,000;
(xixxvii) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigationmaterial litigation relating to the Business (unless such settlement calls only for the payment of money by Cosmo or a Continuing Affiliate), or waive, release, relinquish release or assign any material claims or material rightsrelating to the Business, including with respect to any Azur IP Acquired Intellectual Property Rights;
(xxxviii) adopt any change, other than as required by applicable generally accepted accounting principles or IFRS, in its accounting policies, procedures or practices;
(xxixix) license (except in connection with the Reorganization as set forth in Schedule A) or permit any rights to lapse in any Material Azur IP Acquired Intellectual Property Rights;
(xx) except in connection with the Reorganization as set forth on Schedule A, with respect to any Tech Group Entity, (A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim Claim or assessment relating to any of the Azur Group EntitiesCosmo Parties or any of their Subsidiaries, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim Claim or assessment relating to any Azur Group Entity (in each case Cosmo Party or any of its Subsidiaries, other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course Ordinary Course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing DateBusiness;
(xxiiixxi) lend money fail to make any person (except for business expenses capital expenditures with respect to its current employees in the ordinary course of business and Business consistent with past practices) or guarantee the indebtedness Ordinary Course of any PersonBusiness;
(xxivxxii) make take any capital expendituresaction that could reasonably be expected to cause Tech to be treated as a U.S. domestic corporation for U.S. federal tax purposes immediately after the Effective Time (it being agreed that no action taken (1) pursuant to and in compliance with the terms of (A) Section 5.3, except for capital expenditures thator (B) the Reorganization as set forth in Schedule A, when added to all other capital expenditures made on behalf or (2) at the request of the Azur Group Entities during the Pre-Closing PeriodSalix, do not exceed $1 millionshall constitute a breach of this Section 5.6(a)(xxii)); or
(xxvxxiii) agree or commit to do any of the foregoing.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself From the date hereof until the earlier of the Closing Date and its Subsidiaries, that, during the Pre-Closing Periodtermination of this Agreement in accordance with Section 9.01, except (i) as set forth in Section 5.4 of the Azur Disclosure Scheduleexpressly contemplated hereunder, as contemplated in Schedule 1, (ii) as required by this Agreement or Law, (iii) if the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and Purchaser shall have consented in accordance with this Agreement and the Related Agreements), or as otherwise agreed to advance in writing by Jazz (such agreement consent not to be unreasonably withheld, conditioned or delayed), (xiv) in connection with the Pre-Closing Restructuring and as set forth in Section 6.11, (v) for any Intercompany Transactions or (vi) as set forth on Schedule 6.01, the Company shall (and shall cause each of its Subsidiaries to), and the Azur Group Entities Seller shall cause the Company and each of its Subsidiaries to, use reasonable best efforts to conduct its business in the ordinary course of business consistent with past practice and operations solely use its reasonable best efforts to preserve the goodwill and organization of its or their business and relationships with customers, suppliers, vendors, officers, employees, consultants and other Persons having business relations with the Company and its Subsidiaries, and the Company shall not, and shall cause each of its Subsidiaries not to, and the Seller shall cause the Company and each of its Subsidiaries not to:
(a) issue, sell or deliver any Equity Interests;
(b) merge or consolidate the Company or any of its Subsidiaries with any other Person (provided that, for the avoidance of doubt, nothing in this Section 6.01(b) shall prohibit any Subsidiary of the Company from merging or consolidating with any other Subsidiary of the Company);
(c) effect any recapitalization, reclassification, in-kind dividend, equity split or similar change in capitalization (except by any direct or indirect Subsidiary of the Company);
(d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any Equity Interests (except dividends paid by any direct or indirect Subsidiary of the Company);
(e) repatriate to the United States any amount of cash as a dividend in excess of $25,000,000 in the aggregate from any Subsidiary of the Company (or any joint venture which is not a Subsidiary and to which the Company or any of its Subsidiaries is a party) outside of the United States, except in connection with the repayment of any intercompany loans or otherwise in the ordinary course of business consistent with past practice;
(f) amend its certificate or articles of incorporation or limited liability company agreement (or equivalent organizational documents);
(g) make any redemption or purchase of any Equity Interests of the Company or any of its Subsidiaries, including the Membership Interests;
(h) sell, assign, transfer, mortgage, pledge, lease, license, sublicense or subject to any Lien, charge or otherwise encumber all or any portion of its assets, except (i) Company Permitted Liens, (ii) sales of products in the ordinary course of business and consistent with past practices anddispositions of assets that are obsolete, to worn out surplus or no longer used and useful in the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each conduct of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any business of the Azur Group Entities has significant business relations Company and (z) subject to applicable Law its Subsidiaries, taken as agreed in good faith by counsel to Jazza whole, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend any such transactions between or otherwise alter (among the Company and/or its Subsidiaries or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment factoring arrangements entered into in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000practice;
(vii) incur abandon or permit to lapse any Indebtedness, enter into any new material Intellectual Property owned by the Company or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securitiesits Subsidiaries;
(viij) create disclose any trade secrets or permit the creation of any Lien (other than a Permitted Lien) on any material Confidential Information of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into Company or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable its Subsidiaries to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any ContractPerson, other than in the ordinary course of business and consistent with past practices and practice, pursuant to a written confidentiality agreement (including such a confidentiality agreement contained within the organizational documents of any joint venture to which the Company or any of its Subsidiaries is a party);
(k) make any capital investment in, or any capital contribution or loan or advance to, or guaranty for the benefit of, any joint venture that does is not require a Subsidiary (xexcept as required by the organizational documents thereof in effect as of the date hereof) a term in excess or other Person, except between or among the Company and/or its Subsidiaries;
(l) (i) for the calendar year 2018 (including, for the avoidance of one year doubt, the portion of 2018 elapsed prior to the date of this Agreement), make any capital expenditures or (y) payments by any Azur Group Entity commitments in excess of $500,000 per annum427,000,000 in the aggregate, or (ii) for the calendar year 2019, make any capital expenditures or commitments in excess of $107,750,000 in the aggregate in any calendar quarter;
(xixm) (i) enter into or modify any Company Affiliate Transactions or (ii) make any other payment to any Affiliate of the Company (other than any of its Subsidiaries), other than, in the case of clause (ii), transactions made or entered into in accordance with Contracts made available to the Purchaser prior to the date of this Agreement, and any other Surviving Commercial Contracts;
(n) incur any Company Indebtedness, other than (Ai) Indebtedness available under Contracts governing the Company Indebtedness existing as of the date hereof in connection an amount not to exceed $100,000,000 in the aggregate, (ii) Indebtedness between or among the Company and/or any of its Subsidiaries, (iii) guarantees by the Company of Indebtedness of Subsidiaries of the Company, which Indebtedness is incurred in compliance with this Section 6.01, (iv) Indebtedness arising solely from a change in GAAP and (iv) Indebtedness for an amount not in excess of $25,000,000 in the aggregate outstanding at any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rightsone time;
(xxo) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
except (xxii) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, or (ii) to the extent required under any Company Benefit Plan set forth on Schedule 3.13(a) or any other Contract in effect as of the date of this Agreement, (A) grant to any current or former director, independent contractor, consultant, employee or officer of the Company or any its Subsidiaries any increase in compensation, bonus or fringe or other benefits or grant any type of compensation or benefit to any such Person not previously receiving or entitled to receive such compensation, except in the ordinary course of business with respect to any such Person with an annual base salary or base wages of less than $200,000, (B) make grant to any Person any severance, retention, change in control or change termination compensation or benefits or any Tax electionincrease therein, except with respect to new hires (with an annual base salary or base wages of less than $200,000) or to employees in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business, (C) file enter into or adopt any material Company Benefit Plan or amend in any Tax Return material respect any material Company Benefit Plan or (D) enter into or adopt any closing material benefit plan, agreement, settle or other arrangement that provides severance, change in control, retention, or similar benefits, or amend any Tax claim material Company Benefit Plan or assessment relating other arrangement that provides severance, change in control, retention or similar benefits, or (E) take any action to cause or accelerate the payment, funding, right to payment or vesting of any compensation or benefits (except as required pursuant to this Agreement);
(p) hire any Person to be employed by the Company or any of its Subsidiaries or terminate the Azur Group Entities, surrender employment of any right to claim a refund of Taxes, or consent to any extension or waiver employee of the limitation period applicable to Company or any Tax claim or assessment relating to any Azur Group Entity of its Subsidiaries (in each case other than elections“for cause”), filings, settlements, closing agreements, extensions other than the hiring or waivers made terminating of employees with annual base salary or base wages less than $250,000 (provided that any such actions are in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datepractice);
(xxiiiq) lend money make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any amended material Tax Return, enter into any material closing agreement with respect to Taxes, or settle any person (except for business expenses material Tax claim, audit, assessment or dispute or surrender any material right to its current employees claim a refund of Taxes, other than in the ordinary course of business, or take any action or otherwise engage in any transaction or series of transactions outside of the ordinary course of business and consistent inconsistent with past practices) practice that could, or guarantee could be expected to, increase the indebtedness Purchaser’s or its Affiliates’ inclusions of any Persontaxable income, following the Closing, pursuant to Sections 951 or 951A of the Code;
(xxivr) make implement any capital expendituresemployee layoffs implicating WARN, except for capital expenditures any such layoffs that result in liabilities of less than $500,000 in the aggregate;
(s) settle, release, waive or compromise any Claim, or other pending or threatened proceedings by or before a Governmental Entity if such settlement, release, waiver or compromise (i) with respect to the payment of monetary damages, involves the payment by the Company or any of its Subsidiaries of monetary damages exceeding $10,000,000 individually or $40,000,000 in the aggregate, (ii) with respect to any non-monetary terms and conditions therein, imposes or requires actions that would or would be reasonably expected to be material to the Company and its Subsidiaries, taken as a whole, or (iii) with respect to any Claim set forth on Schedule 6.01(s);
(t) terminate or materially modify or amend any Company Material Contract, Company Leased Real Property Lease or Company Landlord Lease, or enter into any Contract that, when added if existing prior to all the date of this Agreement, would be a Company Material Contract, or enter into any Company Leased Real Property Lease or Company Landlord Lease other capital expenditures made on behalf than in the ordinary course of business;
(u) adopt a plan or agreement of complete or partial liquidation or dissolution of the Azur Group Entities during Company or any of its Subsidiaries, except (i) in connection with a consolidation, reorganization, or similar transaction solely relating to any of the Pre-Closing Period, do not exceed $1 millionCompany’s Subsidiaries and (ii) the liquidation or dissolution of any dormant Subsidiary of the Company; or
(xxvv) agree to take, make any commitment to take, or commit to do adopt any resolutions in support of, any of the foregoingactions prohibited by this Section 6.01; provided, that with respect to any joint venture that is not a Subsidiary, the Company shall not, and shall cause its Subsidiaries not to, without the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), exercise any material right, approval or remedy (or omit to take any action required to preserve any such right, approval or remedy) provided thereto under the organizational documents of such joint venture. Without limiting the scope of covenants of the Seller and the Company set forth in this Section 6.01, the Parties acknowledge and agree that (x) nothing contained in this Section 6.01 is intended to give the Purchaser, directly or indirectly, the right to direct the control or operations of the Company or any of its Subsidiaries prior to the Closing and (y) prior to the Closing, subject to this Section 6.01, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the operations of it and its Subsidiaries.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Tenneco Inc)
Conduct of the Business. Azur agrees(a) From the date hereof until the Effective Time or the earlier termination of this Agreement, as to itself the Company shall conduct its and its Subsidiaries, that, during ’ business in the Pre-Closing Periodordinary course of business, except as set forth in Section 5.4 on the Covenants Exceptions Schedule.
(b) From the date hereof until the Effective Time or the earlier termination of the Azur Disclosure Schedulethis Agreement, except as otherwise contemplated by this Agreement, as contemplated in set forth on the Covenants Exceptions Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed consented to in writing by Jazz the Purchaser (such agreement consent not to be unreasonably withheld, conditioned delayed or delayedconditioned), (x) each of the Azur Group Entities shall conduct its business and operations solely in the ordinary course of business and consistent with past practices andCompany shall, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not its Subsidiaries to, directly or indirectly do, or commit to do, any of the following:
(i) declarenot (A) amend or propose to amend the respective Organizational Documents of the Company or any of its Subsidiaries in any manner or (B) split, accruecombine or reclassify the capital stock or other equity interests of the Company or any of its Subsidiaries;
(ii) not issue, set aside sell, pledge, transfer or dispose of, or agree to issue, sell pledge, transfer or dispose of, any shares of capital stock, Units or other equity interests of the Company or any of its Subsidiaries or issue any shares of capital stock or equity interests of any class or issue or become a party to any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to the issued or unissued capital stock or other equity interests of the Company or any of its Subsidiaries (other than this Agreement and the agreements contemplated hereby), or grant any Options, stock appreciation or similar rights or interests;
(iii) not redeem, purchase or otherwise acquire any outstanding shares of capital stock, Units or other equity interests of the Company or any of its Subsidiaries or declare or pay any dividend or make any other distribution in respect of to any shares of capital stock or Person other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding than cash dividends paid by the Company prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group EntityClosing Date;
(iv) effect or become a party not (A) grant to any Contract relating to employee of the Company or any of its Subsidiaries any increase in compensation or benefits, except as may be required by applicable Law or the terms of any Plan; (B) modify or establish any Plan (or any arrangement that would constitute a Competing Transaction with respect to each Azur Group EntityPlan, recapitalization, reclassification of shares, stock split, reverse split if adopted) or collective bargaining agreement or similar transaction with respect arrangement, except (1) to each Azur Group Entity, the extent required by Law or make any investment in any equity securities the terms of any other Person, including any joint venture, Plan or acquire contract as in effect on the stock date of this Agreement or all or substantially all (2) administrative modifications as would not be material and would be in the ordinary course of business; (C) terminate the assets or rights employment of any employee in the position of vice president or above, other Person than for cause; (D) implement any employee layoffs in violation of WARN; (E) hire any new employees or individual independent contractors (other than new hires of non-executive employees or individual independent contractors, in each case, in the ordinary course of business consistent with past practice); (F) take any division action to accelerate any payment or benefit, the vesting of any other Personpayment or benefit or the funding of any payment or benefit, payable or to become payable to any of its directors, officers, employees or individual independent contractors; or (G) grant to any of its directors, officers, employees or individual independent contractors any increase in severance or termination pay;
(v) not sell, lease, license, assign, transfer, abandonexchange, convey swap or otherwise dispose of of, or subject to any assets, securities, rights or property of any Azur Group Entity, Lien (other than in each case Permitted Liens), any of its properties or assets (including shares of capital or other equity interests of the Company or any Subsidiary thereof), except for (A) sales the sale, lease, transfer or disposition of inventory and or obsolete machinery or equipment in the ordinary course of business business, (B) as to the Leased Real Property, the exercise of the Company’s or any of its Subsidiaries’ rights and consistent with past practicesremedies under any Lease, in the ordinary course of business, including any expiration, termination, renewal, expansions, reductions or similar rights as to such Leased Real Property, or (BC) Liens on assets that are not individually in excess of $500,000material to the Company and its Subsidiaries, taken as a whole, that will be removed at or prior to Closing;
(vi) incur any Indebtedness, not (A) enter into any new (1) material customer agreements that would be required to be listed on the Contracts Schedule or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii2) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent business, any other contract that would be required to be listed on the Contracts Schedule, or (B) assign, amend (except for amendments in the ordinary course of business) or terminate (except for a termination resulting from the expiration of a contract in accordance with past practicesits terms) any contract listed or that would be required to be listed on the Contracts Schedule;
(viiivii) except not acquire (A) any business or Person, by merger or consolidation, purchase of assets or equity interests, or by any other manner, in a single transaction or a series of related transactions, or (B) or other material assets of any Person other than, in the case of this clause (B), (1) acquisitions of inventory in the ordinary course of business and consistent with past practicespractice or (2) capital expenditures, enter into which shall be governed by Section 7.01(b)(x);
(viii) not acquire any direct or adopt indirect fee interest in any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Lawreal property;
(ix) except not sell, assign, transfer, exclusively license, abandon or permit to lapse any material Company Intellectual Property, other than in the extent required by the terms ordinary course of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entitybusiness;
(x) enter into except in accordance with the capital budget of the Company and its Subsidiaries attached on the Capital Budget Schedule, not commit or authorize any Contract pursuant to which any Azur Group Entity may become obligated commitment to make any severance, termination or similar paymentcapital expenditures in excess of two hundred and fifty thousand dollars ($250,000) in the aggregate, or any bonus or similar payment (other than payment not fail to make material capital expenditures in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entityaccordance with such budget;
(xi) terminate not make any employee change in any method of financial accounting or auditing practice, including any working capital procedures or practices, other than for cause (changes required as a result of changes in which case Azur shall first consult with Jazz), GAAP or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000applicable Law;
(xii) enter into not (A) fail to pay or forgive satisfy any loan material account payable or other liability incurred in the ordinary course of business consistent with past practice (including in each case, the timing of any such payments), other than any such liability that is being contested by the Company or its Subsidiaries in good faith, (B) alter the procedures of the Company with respect to employeesthe payment of accounts payable or the collection of accounts receivable, directorsincluding by accelerating the collection of any accounts receivable, (C) materially delay or consultantspostpone any necessary, appropriate or otherwise scheduled repair or maintenance of any property of the Company or any of its Subsidiaries or (D) alter the practices of the Company and its Subsidiaries with respect to the purchase of inventory in any material respect;
(xiii) not enter into any new collective bargaining agreement or agreement with a trade unionAffiliate Transaction;
(xiv) contribute not make any material amount loans, advances or capital contributions to, or investments in, any other Person other than loans, advances or capital contributions by of the Company or any of its Subsidiaries (A) to any trust Subsidiary or (B) to any employee in connection with travel, entertainment and related business expenses or other arrangement funding any Benefit Plan, except to customary de minimis out-of-pocket expenses in the extent required by the existing terms ordinary course of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Lawbusiness;
(xv) not (A) settle or compromise any Litigation if (1) the amount payable by the Company or any of its Subsidiaries in connection therewith would exceed one hundred thousand dollars ($100,000), (2) such settlement or compromise would be reasonably likely to materially affect the business of the Company or any of its Subsidiaries or their respective operations, (3) such settlement or compromise contemplates or involves any admission of wrongdoing or misconduct or provides for any relief or settlement other than the payment of money or (4) such Litigation relates to or is a result of entry into this Agreement or the transactions contemplated hereby or (B) commence any Litigation where the amount in dispute would reasonably be expected to exceed one hundred thousand dollars $100,000;
(xvi) not (A) make, change or revoke any material Tax election, (B) change any Tax accounting period, (C) adopt or change any material method of Tax accounting, (D) file any amended Tax Return, (E) enter into any “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local, or non-U.S. Tax Law) or apply for any Tax ruling with any taxing authority, (F) settle or compromise any audit, claim or assessment in respect of a material amount of Tax, (G) consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, or (H) surrender any right to claim a refund of Taxes;
(xvii) not incur, assume, endorse, guarantee or otherwise become liable for any Indebtedness, except for (A) any Indebtedness for borrowed money among the Company and its wholly owned Subsidiaries or among wholly owned Subsidiaries of the Company, (B) guarantees by the Company of Indebtedness for borrowed money of its wholly owned Subsidiaries or guarantees by wholly owned Subsidiaries of the Company of Indebtedness for borrowed money of the Company or any other wholly owned Subsidiary thereof, which Indebtedness is incurred in compliance with this clause (xvii), (C) any Indebtedness under the Company Revolving Credit Agreement incurred in the ordinary course of business consistent with past practice; or (D) any other Indebtedness for borrowed money incurred by the Company or any of its Subsidiaries in an amount not to exceed five million dollars ($5,000,000) in aggregate principal amount outstanding from time to time;
(xviii) not adopt or enter into a plan or agreement of complete or partial liquidation, liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, its Subsidiaries (other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (vMerger), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) not enter into any closing agreementcontract with any customer that provides for pricing incentives, settle any Tax claim discounts or assessment relating to any other terms outside of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;practice; and
(xxiiixx) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expendituresnot authorize, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxv) agree or commit or agree to do take any of the foregoingaction described in this Section 7.01(b).
Appears in 1 contract
Samples: Merger Agreement (Hubbell Inc)
Conduct of the Business. Azur agrees(a) From the date hereof until the Closing, as except set forth on Schedule 7.01, the Company shall use commercially reasonable efforts to itself (i) conduct its and its Subsidiaries’ business in the ordinary course of business, that(ii) preserve materially intact the Company’s and each of its Subsidiaries’ present business organization, during (iii) keep available the Pre-Closing Periodservices of the Company’s current officers and (iv) preserve satisfactory relationships with the Customers and the Suppliers.
(b) From the date hereof until the Closing, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as otherwise contemplated in Schedule 1, as required by this Agreement (which, for the avoidance of doubt, shall include the Distribution and any Tax or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement other consequences thereof) and the Related Agreements)terms of the Transition Services Agreement, or as otherwise agreed set forth on Schedule 7.01, consented to in writing by Jazz the Purchaser (such agreement consent not to be unreasonably withheld, conditioned delayed or delayed)conditioned) or required by Law, (x) each of the Azur Group Entities Company and Blocker Corps shall conduct its business not, and operations solely in the ordinary course of business and consistent with past practices and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur Company shall not and shall cause each of the Azur Group Entities not permit its Subsidiaries to, directly or indirectly do, or commit to do, any of the following:
(i) declareamend or modify its or any of its Subsidiaries’ certificate of formation, accruelimited liability company agreement or equivalent organizational documents, set aside or pay any dividend or make any other distribution except as may be required in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entityorder to effectuate the Distribution;
(ii) issue, deliver, pledge, encumber, sell or authorize subject to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted LienLiens) on any of the assets its limited liability company interests or other equity interest or any options, warrants, convertible or exchangeable securities, subscriptions, rights, phantom stock, stock appreciation rights, calls or commitments of any Azur Group Entities kind with respect to its limited liability company interests or other than in the ordinary course of business and consistent with past practicesequity interests;
(viiiiii) except in the ordinary course of business and consistent with past practicespractice, enter into sell, lease, sublease, mortgage, pledge or adopt otherwise encumber (other than Permitted Liens) or dispose of any newof the material fixed assets or equipment owned by the Company or its Subsidiaries;
(iv) plan, announce, implement or amend or terminate effect any existingreduction in force, Benefit Plan (including any trust lay off, early retirement program, severance program or other funding arrangement)program or effort concerning the termination of employees, other than as required by Lawexisting Plans;
(ixv) except adopt a plan of liquidation, dissolution, merger, consolidation or other reorganization;
(vi) enter into a new agreement that would be required to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing be disclosed on Schedule 2.11 if it had been entered into as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit manner any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants agreements set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contracton Schedule 2.11, other than in the ordinary course of business and consistent with past practices and that does not require or as otherwise necessary for the maintenance of property relating to their respective businesses;
(xvii) a term increase in excess any material manner the compensation of, or enter into any new bonus incentive, employee benefit, severance or termination agreement with, any of one year its officers or employees receiving (ybefore or after such increase) payments by any Azur Group Entity base compensation in excess of $500,000 150,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent or as required by any Law, or any agreement with past practicessuch person in effect as of the date hereof;
(viii) make any material change in its financial or Tax accounting methods, principles or practices other than as required by GAAP, the Code or applicable Law;
(ix) make any acquisition of another business, whether by merger, stock or asset purchase or otherwise;
(x) make or change any material Tax election, adopt or change any material method of accounting with respect to Taxes, change any annual material Tax accounting period, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would change will have the effect of increasing the Tax liability of the Azur Group Entities Company or any of its Subsidiaries or any of the Jazz Group Entities Blocker Corps for any period ending after the Post-Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing DatePeriod;
(xxiiixi) lend money directly or indirectly incur, assume, guarantee, endorse or otherwise become liable or responsible for any Indebtedness, including any capitalized lease obligations, of any other Person;
(xii) fail to maintain its books, accounts and records in the usual, regular and ordinary course of business consistent with past practices;
(xiii) adopt or amend any person Plan or collective bargaining agreement outside the ordinary course of business, except as required by Law;
(except for business expenses xiv) amend in any material respect or fail to maintain in full force and effect the insurance policies described in Schedule 2.15;
(xv) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any of its current employees in Subsidiaries or any of the Blocker Corps;
(xvi) cancel, compromise, waive, or release any right or claim (or series of related rights and claims) involving more than $250,000 and outside the ordinary course of business and consistent with past practices) practices or guarantee cancel or forgive any material Indebtedness for borrowed money owed to the indebtedness of Company or its Subsidiaries or any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionBlocker Corps (other than with respect to Affiliates); or
(xxvxvii) agree or commit to do any of the foregoing.
Appears in 1 contract
Conduct of the Business. Azur agrees, as to itself From the date hereof until the earlier of the Closing Date and its Subsidiaries, that, during the Pre-Closing Periodtermination of this Agreement, except (i) as contemplated hereunder, (ii) as required by Law, (iii) unless the Purchaser shall have consented in writing (which consent will not be unreasonably withheld or delayed) or (iv) as set forth in Section 5.4 of on Schedule 5.01, the Azur Disclosure Schedule, as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization Company shall (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed to in writing by Jazz (such agreement not to be unreasonably withheld, conditioned or delayed), (x) shall cause each of its Subsidiaries to) use its commercially reasonable efforts to conduct the Azur Group Entities shall conduct its business and operations solely Business in the ordinary course of business and consistent with past practices andpractice and preserve the businesses, to the extent consistent therewith (organization, goodwill and subject to the restrictions set forth in this Section 5.4(a)), (y) each operations of the Azur Group Entities will use commercially reasonable efforts to preserve Company and maintain existing relations and goodwill its Subsidiaries, including their rights, assets, properties, relationships with Governmental Authoritiesvendors, customers, employees, customers, brokers, suppliers Governmental Authorities and other Persons with which third parties, and the Company shall not, and shall not permit any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not its Subsidiaries to, directly or indirectly do, or commit to do, any of the following:
(iA) declareissue, accrue, set aside sell or pay any dividend or make any other distribution in respect of deliver any shares of capital stock its or other securitiesany of its Subsidiaries’ equity securities or issue, sell, grant or repurchaseaccelerate the timing of payment or vesting of any securities exchangeable or convertible into, redeem options with respect to, warrants to purchase or otherwise acquire rights to subscribe for, any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in of its or any Azur Group Entityof its Subsidiaries’ equity securities, or issue, sell or grant any securities convertible into any such shares of capital stock unit appreciation, phantom equity, profit participation or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except similar rights with respect to exercise the Company or any of Azur Options outstanding prior to the date of this Agreementits Subsidiaries;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(ivB) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of sharesreclassification, dividend on its equity, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities like change of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person its or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey its Subsidiaries’ capitalization or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entityrecapitalization;
(xviC) renew amend its or any of its Subsidiaries’ certificate or articles of incorporation or bylaws (or equivalent organizational documents);
(D) make any redemption or purchase of, or enter into any Contract contract with respect to the voting of, any non-compete shares of its or exclusivity provisions that would contractually restrict or limit the operations any of any Azur Group Entity in any material respectits Subsidiaries’ equity securities;
(xviiE) sell, lease, license, abandon, dispose of, pledge, impose a Lien upon, assign or transfer any portion of its or any of its Subsidiaries’ assets (Aother than Intellectual Property, which is governed by clause (M) below);
(F) make any capital investment in, or any loan to, any other Person or enter into any contract for a joint venture, strategic alliance, partnership or sharing of profits;
(G) make any capital expenditures or commitments therefor in excess of $100,000, except for such capital expenditures or commitments therefor that are reflected in the Company’s budget for the fiscal year ending December 31, 2015;
(H) incur, assume, endorse or guarantee any Indebtedness other than in the ordinary course of business;
(I) make any loan to, or enter into any other transaction with, any of the directors, officers, and employees of the Company or any of its Subsidiaries outside the ordinary course of business;
(J) enter into, amend, modify, renew or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend waive performance under in any material respect or terminate any Material Contract;
(xviii) enter into any ContractContract or contract that would be a Material Contract if in effect on the date hereof, other than in the ordinary course of business (other than with respect to real property, which is governed by clause (K) below and consistent with past practices and that does not require Intellectual Property, which is governed by clause (xM) a term below);
(K) enter into, amend, modify, renew or waive performance under in excess any material respect or terminate any lease, sublease or license for real property other than in the ordinary course of one year or business;
(yL) payments by settle any Azur Group Entity Litigation involving an amount in excess of $500,000 per annum100,000 for any one case or settle any Litigation other than Litigation seeking solely monetary damages, or commence any Litigation;
(xixM) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response grant to any certification Person, or sell, transfer, pledge, impose a Lien on, or otherwise dispose of or permit to lapse, any rights to Company IP Rights, except non-infringement or invalidity exclusive licenses granted to customers in respect the ordinary course of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rightsbusiness;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (BN) make or change any Tax election, (C) file change an annual Tax accounting period, adopt or amend change any Tax Return or (D) accounting method, file any amended Tax Return, enter into any closing agreementagreement with a Tax authority, settle any Tax claim or assessment relating to the Company or any of the Azur Group Entitiesits Subsidiaries, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating the Company or any of its Subsidiaries (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business);
(O) make any change in its accounting methods, principles or practices, except as required by GAAP;
(P) make any material change in its policies with respect to the payment of accounts payable or accrued expenses or the collection of the accounts receivable or other receivables, including any acceleration or deferral of the payment or collection thereof, as applicable, in each case, other than in the ordinary course of business;
(Q) adopt, terminate or materially amend the terms of any Plan, or materially increase the compensation to be provided to any Azur Group Entity employee, except (in each case other than electionsA) as required by any applicable Law, filings, settlements, closing agreements, extensions or waivers made (B) in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability practice of the Azur Group Entities Business, (C) arrangements that will not result in any liability under this Agreement or otherwise to Purchaser or its Affiliates (including any retention or similar arrangements that will be paid solely by the Jazz Group Entities Seller) and for any period ending after the Closing Date which Purchaser has no requirement to maintain comparable benefits, or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date(D) as requested by Purchaser;
(xxiiiR) lend money grant any short-term incentives to any person (except for business expenses to its current employees increase sales or new supplier discounts other than in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionbusiness; or
(xxvS) agree enter into any contract or otherwise commit or agree, orally or in writing, to do any of the foregoing.
Appears in 1 contract
Conduct of the Business. Azur agrees, Except as to itself and its Subsidiaries, that, during the Pre-Closing Period, except as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in Schedule 1, as required expressly permitted by this Agreement or Agreement, between the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with date of this Agreement and the Related Agreements)Effective Date, VoiceStream shall cause the Company to conduct the Company's and its Subsidiary's business only in the ordinary course and use its reasonable efforts to preserve intact its present business organization, maintain its properties in good operating condition and repair, keep available the services of its present officers and employees and preserve in all material respects its present business relationships and goodwill. Further, and without limiting the generality of the foregoing, from the date hereof until the Effective Date, without the prior written consent of Xircom, the VoiceStream Parties shall not permit the Company nor its Subsidiary to:
(a) amend its Certificate of Incorporation or By-Laws other than an amendment which changes the name of the Company or its Subsidiary;
(b) purchase, redeem, issue, sell or otherwise acquire or dispose of, either directly or indirectly, any of the OTHI Shares, or as reclassify, split, declare or pay any dividends on or make any other distribution upon or with respect to, or otherwise agreed change any of the OTHI Shares or the shares of the capital stock of any of the Company's Subsidiaries or grant or enter into any options, warrants, puts or calls or other rights to in writing purchase, sell or convert any obligation into any of the OTHI Shares or the shares of the capital stock of any of the Company's Subsidiaries;
(i) enter into any transactions with any of its officers, directors or employees or any entity controlled by Jazz (any of such agreement not to be unreasonably withheld, conditioned or delayed)individuals, (xii) each enter into any employment or severance agreements or make or grant any increase in the compensation (whether salary, commission, bonus, benefits (retirement, severance or other) or other direct or indirect remuneration) of Employees or enter into any contract or other binding commitment in respect of any such increase, (iii) amend, adopt or terminate any 401(k) or health and welfare plan covering Employees in any way that materially affects Employees of the Azur Group Entities shall conduct Company or its Subsidiary, or (iv) enter into any negotiations in respect of any collective bargaining agreement covering Employees, except in each case in the ordinary course of business.
(d) sell, assign, transfer, pledge, encumber or otherwise dispose of, or purchase or otherwise acquire, or agree to sell, assign, transfer, pledge, encumber or otherwise dispose of, purchase or otherwise acquire any of assets or properties having a value in excess of $100,000 in the aggregate or otherwise material to the business and operations solely or any other material right, except in each case in the ordinary course of business;
(e) enter into any material contract, or any material amendment, supplement or waiver in respect of any material contract, except in each case in the ordinary course of business;
(f) cancel or compromise any debt or claim, or waive or release any material right, other than adjustments in the ordinary course of business for goods and consistent with past practices andservices sold and received which, to in the extent consistent therewith (aggregate, are not material and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect settlement of any shares of capital stock pending or other securitiesthreatened litigation listed on Schedule 4.15, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entityon terms approved by Xircom;
(iig) issue, deliver, pledge, encumber, sell make any capital expenditures or authorize to sell any shares capital additions or improvements in excess of capital stock an aggregate of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement$100,000;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(viih) create or permit the creation of any Lien (other than a Permitted Lien) lien on any of the assets of any Azur Group Entities asset other than in the ordinary course of business and business, consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) enter into any Contract pursuant transaction that would have a material adverse effect on Xircom's ability after the Effective Date to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect conduct the business of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entitythe Company as currently conducted;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annum;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP Rights;
(xx) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group Entities, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; or
(xxvj) agree or commit otherwise commit, whether in writing or otherwise, to do 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. Azur agrees, as to itself and its Subsidiaries, that, during (a) From the Pre-date hereof until the Closing Periodor the earlier termination of this Agreement in accordance with Section 9.01, except (i) as otherwise expressly contemplated by this Agreement, (ii) as set forth in Section 5.4 of on the Azur Disclosure Schedule, Covenants Exceptions Schedule or (iii) as contemplated in Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), or as otherwise agreed consented to in writing in advance by Jazz the Purchaser (such agreement consent not to be unreasonably withheld, conditioned delayed or delayedconditioned), the Company shall, and shall cause each of its Subsidiaries to use commercially reasonable efforts to (A) conduct its and its Subsidiaries’ businesses in the ordinary course of business consistent with past practice, (B) preserve substantially intact the business organization and assets of the Company and its Subsidiaries, and (C) keep available the services of the current officers, employees and consultants of the Company and its Subsidiaries and preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other Persons with which the Company or any of its Subsidiaries has significant business relations.
(b) Without limiting the foregoing, from the date hereof until the Closing or the earlier termination of this Agreement in accordance with Section 9.01, except (i) as otherwise expressly contemplated by this Agreement (including, for the avoidance of doubt, the Note Redemption), (xii) as set forth on the Covenants Exceptions Schedule or (iii) as consented to in writing in advance by the Purchaser (such consent not to be unreasonably withheld, delayed or conditioned), the Company shall not, and shall cause each of its Subsidiaries not to:
(i) (A) amend or propose to amend the Azur Group Entities shall conduct respective Organizational Documents of the Company or any of its business Subsidiaries in any manner or (B) split, combine or reclassify the shares, capital stock or other equity interests of the Company or any of its Subsidiaries;
(ii) issue, sell, pledge, transfer, or dispose of, or agree to issue, sell pledge, transfer or dispose of, or subject to any Lien, any shares of capital stock or other equity interests of the Company or any of its Subsidiaries or issue any shares of capital stock or equity interests of any class or issue or become a party to any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to the issued or unissued capital stock or other equity interests of the Company or any of its Subsidiaries (other than this Agreement and operations solely the agreements contemplated hereby), or grant any stock appreciation or similar rights;
(iii) redeem, purchase or otherwise acquire any outstanding shares of capital stock or other equity interests of the Company or any of its Subsidiaries or declare or pay any non-cash dividend or make any other non-cash distribution to any Person other than the Company or one (1) or more of its Subsidiaries on or prior to the Closing Date;
(iv) (A) grant to any employee of the Company or any of its Subsidiaries any material increase in compensation, except (1) for pay increases, promotions, and bonuses made in the ordinary course of business and consistent with past practices andpractice, (2) as may be required by applicable Law or the terms of any Plan, or (3) in connection with annual renewals of any welfare plans; (B) materially amend or establish any Plan (or any arrangement that would constitute a Plan, if adopted), except (1) to the extent consistent therewith required by Law or the terms of any Plan or Contract or (2) as would not be material and subject to would be in the restrictions set forth ordinary course of business; (C) terminate the employment of any employee in this Section 5.4(a))the position of vice president or above, other than for cause; or (yD) each implement any employee layoffs in violation of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other PersonWARN Act;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of, any material property or material assets owned by the Company or any of any assetsits Subsidiaries, securities, rights or property of any Azur Group Entity, other than in each case except for (A) sales the sale, lease, transfer or disposition of inventory and equipment or obsolete machinery, equipment, or other assets in the ordinary course of business and consistent with past practicespractice, or (B) not individually in excess as to the Leased Real Property, the exercise of $500,000;
(vi) incur any Indebtedness, enter into any new the Company’s or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of its Subsidiaries’ rights and remedies under any Azur Group Entities other than Lease, in the ordinary course of business and consistent with past practicespractice, including any expiration, termination, renewal, expansions, reductions or similar rights as to such Leased Real Property, and (C) the expiration of Intellectual Property in accordance with its statutory terms;
(vi) except for amendments in the ordinary course of business, amend or terminate (except for a termination resulting from the expiration of a contract in accordance with its terms), fail to renew or waive any material right under any Contract listed or required to be listed on the Contracts Schedule;
(vii) acquire any business or Person, by merger or consolidation, purchase of assets or equity interests, or by any other manner, in a single transaction or a series of related transactions or enter into any material joint venture or partnership;
(viii) except in accordance with the ordinary course capital budget of business the Company and consistent with past practicesits Subsidiaries, enter into a correct and complete copy of which has been made available to the Purchaser, commit or adopt authorize any newcommitment to make any capital expenditures or incur any liability in respect thereof in excess of five hundred thousand dollars ($500,000) in the aggregate, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Lawfail to make material capital expenditures in accordance with such budget;
(ix) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant change in any method of accounting or awardauditing practice or policy, including any working capital procedures or vestpractices, accelerate other than changes required as a result of changes in GAAP or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entityapplicable Law;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severanceloans, termination advances or similar paymentcapital contributions to, or investments in, any bonus or similar payment (other Person other than payment in respect of base salary)loans, to any Employee, current advances or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required capital contributions by the existing terms Company or any of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) its Subsidiaries (A) adopt a plan to any Subsidiary of complete or partial liquidationthe Company, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into to any agreement employee in connection with travel, entertainment or exercise related business expenses or other bona fide and customary out-of-pocket business expenses or (C) to any discretion providing for acceleration of payment customer, distributor, licensor, supplier or performance as a result of a change of control of any Azur Group Entity;
(xvi) renew other Person with which the Company or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contractits Subsidiaries has significant business relations, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than each case incurred in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annumpractice;
(xixxi) enter into any agreement, Contract or other than arrangement with (A) in connection with any actual officer, director, manager or alleged breach Affiliate of this Agreement the Company or any Related Agreement of its Subsidiaries, including the Sellers and the Seller Representative or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign any material claims or material rights, including with respect to any Azur IP RightsGovernmental Body;
(xxxii) adopt any change, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax electionelection outside of the ordinary course of business, (B) change any annual Tax accounting period, (C) file or amend change any method of Tax Return or accounting, (D) enter into any “closing agreement” with any taxing authority with respect to any amount of Taxes, (E) settle any Tax claim or assessment relating to in respect of any amount of the Azur Group Entities, surrender any right to claim a refund of TaxesTax, or (F) consent to any extension or waiver of the limitation limitations period applicable to any Tax claim or assessment relating to any Azur Group Entity (assessment, in each case case, to the extent such election, change, agreement, settlement, consent or other action would increase the Taxes of the Company or any of the Company’s Subsidiaries after the Closing;
(xiii) commence any Action or settle any Action, other than electionsany Action involving monetary relief only in an amount of five hundred thousand dollars ($500,000) or less;
(xiv) cancel or terminate any material insurance policy naming it as a beneficiary or a loss payable payee without obtaining comparable substitute insurance coverage;
(xv) enter into any Contract that would be required to be set forth on any of clauses (i)-(iii) or (ix)-(xii) of the Contracts Schedule if it had been entered into prior to the date hereof (for the avoidance of doubt, filingsfrom the date hereof until the Closing or the earlier termination of this Agreement in accordance with Section 9.01, settlementsto the extent that the Company or any of its Subsidiaries enters into any Contract that would be required to be set forth on any of clauses (iv)-(vi) or (xiii)-(xvii) of the Contracts Schedule if it had been entered into prior to the date hereof, closing agreementsit shall only do so either (A) with the consent of the Purchaser (such consent not to be unreasonably withheld, extensions delayed or waivers made conditioned), or (B) in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Date;
(xxiii) lend money to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million); or
(xxvxvi) agree authorize, or commit or agree to do take any action described in this Section 7.01(b).
(c) Notwithstanding anything to the contrary herein, (i) nothing herein shall prevent the Company or any of the foregoingCompany’s Subsidiaries from taking or failing to take any commercially reasonable action (including the establishment of any policy, procedure or protocol) reasonably required in response to COVID-19 or any COVID-19 Measure and (ii) no consent of the Purchaser shall be required with respect to any matter (A) to the extent that the requirement of such consent would violate applicable Law, or (B) such action is taken, or omitted to be taken, by the Company or the Company’s Subsidiaries pursuant to any Law; provided, however, that prior to taking (or failing to take) any such action that is outside of the ordinary course or that is not consistent with past practice, the Company shall consult with the Purchaser and consider in good faith the views of the Purchaser regarding any such proposed action or course of conduct.
Appears in 1 contract
Samples: Stock Purchase Agreement (Whole Earth Brands, Inc.)
Conduct of the Business. Azur agrees, as to itself and During the period from the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its Subsidiaries, that, during terms (the “Pre-Closing Period”), except as otherwise contemplated by this Agreement, as set forth in Section 5.4 of the Azur Disclosure Schedule, as contemplated in on Schedule 1, as required by this Agreement or the Related Agreements, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements), 5.1 or as otherwise agreed consented to in writing by Jazz Buyer (such agreement which consent will not to be unreasonably withheld, conditioned or delayed), HD Supply (xi) each will, and will cause its Affiliates (including the Acquired Companies) to, use reasonable best efforts to conduct the Business in the Ordinary Course (provided that it will not be a breach of the Azur Group Entities shall conduct foregoing for HD Supply and its business and operations solely in the ordinary course of business and consistent with past practices andAffiliates to take, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a))without Buyer’s consent, (y) each of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed actions that HD Supply determines in good faith by counsel to Jazz, Azur shall not be reasonably necessary in light of the then-current operating conditions and shall developments with respect to the Business as a result of COVID-19) and (ii) will cause each of Acquired Company (and its other applicable Affiliates with respect to the Azur Group Entities Additional Transferred Assets) to:
(a) not toamend its Charter Documents;
(b) not authorize for issuance, directly issue, sell, pledge, encumber or indirectly do, deliver or agree or commit to doissue, sell, pledge, encumber or deliver any of its equity interests or shares of its capital stock, or issue any securities convertible into, exchangeable for or representing a right to purchase or receive, or enter into any contract with respect to the following:issuance of, its equity interests or shares of its capital stock, provided, that each Acquired Company may issue shares of capital stock or other equity interests to a Seller or another Acquired Company;
(c) not (i) split, combine or reclassify any of its equity interests or shares of its capital stock; (ii) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, any Azur Group Entity;
(ii) issue, deliver, pledge, encumber, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of its capital stock or other equity interests, or any rights, warrants or options to acquire any such shares provided that each Acquired Company may pay cash dividends in respect of its capital stock or other equity interests, except ; or (iii) redeem or otherwise acquire any of its securities;
(d) not (i) incur any Indebtedness or guarantee any Indebtedness of another Person (excluding any Indebtedness or guarantee obligations deemed to exist with respect to exercise of Azur Options outstanding prior to borrowings under the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of any assets, securities, rights or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to IndebtednessSeller ABL Facility), issue or sell any debt securities or warrants or other rights to acquire any debt securities or securities, guarantee any debt securitiessecurities of another Person or (ii) make any loans, advances or capital contributions to, or investments in, any other Person other than (A) to or in an Acquired Company, or (B) employee advances for travel and other business expenses in the Ordinary Course; provided that this Section 5.1(d) shall not apply to any Indebtedness fully discharged as of or prior to the Closing;
(viie) create not acquire, sell or permit the creation dispose of any Owned Real Property, material asset, or material Additional Transferred Asset, except for distributions of cash permitted by Section 5.1(c) and acquisitions or dispositions of inventory in the Ordinary Course;
(f) not mortgage, pledge or subject to any material Lien (other than a Permitted LienLiens) on any material asset of the assets Business or any material Additional Transferred Asset, except in the Ordinary Course;
(g) except as required by applicable Law or as provided under the existing terms of any Azur Group Entities Company Benefit Plan in effect on the date hereof, not (x) enter into, amend or modify any Company Benefit Plan or any employment, bonus, severance or retirement contract covering any Employee or (y) other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practicesOrdinary Course, enter into or adopt increase any new, or amend or terminate any existing, Benefit Plan (including any trust salary or other funding arrangement), form of base wages or other than as required by Law;
(ix) except base compensation for services or employee benefits payable or to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or award, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation become payable to any Employee, Independent Contractorexcept for (i) payments under those Contracts and arrangements disclosed in the Schedules, consultant (ii) changes to employee benefits in the Ordinary Course that are applicable to similarly situated employees of HD Supply and its Affiliates including the Employees, (iii) monthly, quarterly or similar relationshipannual, market-based, promotion-related or merit-based salary increases in the Ordinary Course, and (iv) immaterial increases resulting from changes to welfare benefit programs made in the Ordinary Course;
(h) other than to fill a vacancy set forth in Schedule 5.1(h) or director to fill vacancies arising after the date hereof in the Ordinary Course, not (A) hire any employee who will be an Employee earning a base annual salary in excess of $150,000 or any executive officer of the Business, (B) transfer the employment of any Azur Group Entity employee of HD Supply or its Affiliates who is not an Employee to a role that causes him or her to be an Employee, or (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director transfer the employment of any Azur Group EntityEmployee to another role with HD Supply or any of its Affiliates such that he or she ceases to be an Employee;
(xi) other than in the Ordinary Course, not cancel or terminate any Business Contract or Lease or enter into any Contract pursuant that would be a Business Contract if entered into prior to which any Azur Group Entity may become obligated to make any severance, termination or similar paymentthe date hereof, or any bonus option, right of first offer, right of first refusal or similar payment (other than payment right in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director favor of any Azur Group EntityPerson to purchase or otherwise acquire all or any portion of any real property, in each case, except in connection with the renewal or the expiration in the Ordinary Course of any Business Contract or Lease;
(xij) terminate not acquire any employee other than for cause (in which case Azur shall first consult with Jazz)business or Person, by merger or consolidation, purchase of assets or equity interests, or hire by any employeeother manner, in either casea single transaction or a series of related transactions, whose annual base compensation exceeds or would exceed $150,000otherwise merge with any Person;
(xiik) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) not adopt a plan of complete or partial liquidation, liquidation or dissolution, merger, consolidation, restructuring, recapitalization adopt a plan of reorganization or make any material investment in the capital stock or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control equity interests of any Azur Group EntityPerson;
(xvil) renew or enter into any Contract except in accordance with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any capital budget of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions Business as set forth on Schedule 5.1(l) and for commitments fully performed prior to the covenants set forth in clauses (v)Closing, (xi) not commit or (xxiv) of this Section 5.4(a), or (B) modify in authorize any material respect, amend in commitment to make any material respect or terminate any Material Contract;
(xviii) enter into any Contract, other than in the ordinary course of business and consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity capital expenditures in excess of $500,000 per annum3.5 million in the aggregate, and make material capital expenditures in all material respects in accordance with such budget;
(xixm) other than (A) in connection with any actual not make, amend or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigation, or waive, release, relinquish or assign revoke any material claims or material rightsTax election, including with respect to any Azur IP Rights;
(xx) adopt any changenot change an annual Tax accounting period, other than as required by IFRS, in its accounting policies, procedures or practices;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or not adopt or change a any material method of accounting for Tax purposesaccounting, except as required by applicable Law, (B) make or change any Tax election, (C) file or not amend any material Tax Return Returns or (D) file any claims for material tax refunds, not enter into any material closing agreement, settle any material Tax claim claim, audit or assessment relating to any of the Azur Group Entities, or surrender any right to claim a refund material Tax refund, offset or other reduction in Tax liability; provided that HD Supply (or any Affiliate of TaxesHD Supply acting as an agent for purposes of filing any federal or state consolidated, combined or consent unitary Tax Return that includes any Acquired Company) may amend any such consolidated, combined or unitary Tax Return with respect to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any Taxable period ending after on or before the Closing Date or decreasing if such amended Tax Return does not alter the responsibility for any Tax attribute of Buyer or any Azur Group Entity Acquired Company pursuant to this Agreement and would not otherwise be expected to have a materially adverse impact on any of the Acquired Companies or Buyer following the Jazz Group Entities existing Closing; provided however that, notwithstanding any provision of this Agreement to the contrary, the Parties agree that, prior to the Closing, Sellers may amend, or cause to be amended, the Income Tax Returns listed on Schedule 5.1(m) to the Closing Dateextent necessary to adjust for the items described on such Schedule 5.1(m);
(xxiiin) lend money to any person (except for business expenses to its current employees in not change the ordinary course of business and consistent with past practices) accounting methods used by the Acquired Companies or guarantee the indebtedness of any PersonBusiness, unless required by GAAP or applicable Law;
(xxivo) make not waive, settle or satisfy any capital expendituresclaim (which shall include, except for capital expenditures thatbut not be limited to any pending or threatened Action), when added to all other capital expenditures made on behalf or enter into any settlement agreement or consent decree, involving (i) damages greater than $250,000 that would be payable following the Closing, (ii) an admission of fault by any Acquired Company, or (iii) any restriction or condition that would adversely affect the Azur Group Entities during the Pre-Closing Period, do not exceed $1 million; orBusiness in more than an immaterial way;
(xxvp) maintain existing occurrence-based insurance policies with respect to the Business or other comparable insurance covering the Business, excepting changes to insurance policies in the Ordinary Course, and not allow any cancellations (to the extent within the control of HD Supply or any of its Affiliates), material defaults or material breach of such insurance policies to occur, other than renewals in the Ordinary Course; and
(q) not agree in writing, or commit otherwise, to do take any action described in this Section 5.1. provided, however, that if, as a result of COVID-19, HD Supply makes a written request for Buyer’s consent to take any action or fail to take any action, in each case, that would be prohibited by any of the foregoingforegoing clauses (a) through (q) and Buyer does not respond to HD Supply within 72 hours indicating that it is withholding such consent, such consent shall be deemed to have been given by Buyer; and provided, further, that Buyer’s consent will not be required for HD Supply to take, or fail to take, any action set forth in any of the foregoing clauses (g), (h) and (i) (or (q) in respect thereof) if HD Supply determines in good faith that such action or inaction is reasonably necessary in light of the then-current operating conditions and developments with respect to the Business as a result of COVID-19 and such action or inaction is consistent with HD Supply’s actions or inactions with respect to the business of HD Supply and its Affiliates, other than the Business.
Appears in 1 contract
Conduct of the Business. Azur agreesThe Elan Parties agree, as to itself themselves and its their respective Subsidiaries, that, during from the Pre-Closing Perioddate hereof until the Effective Time, except as set forth in Section 5.4 of the Azur Elan Disclosure Schedule, as contemplated in Schedule 1, as expressly required by this Agreement or the Related Agreements(including (A) actions taken pursuant to Section 5.2, as reasonably necessary to effect (B) transactions required by the Reorganization (subject to and in accordance with this Agreement and the Related AgreementsSection 5.3(a), or (C) as required by applicable Law), or as otherwise agreed to in writing by Jazz Alkermes (such agreement consent not to be unreasonably withheld, conditioned withheld or delayed), (x) each of the Azur Group Entities Business shall conduct its business and operations solely be conducted in the ordinary course Ordinary Course of business and consistent with past practices Business and, to the extent consistent therewith (and subject to the restrictions set forth in this Section 5.4(a)), (y) each of the Azur Group Entities Elan Parties will (and will cause their Subsidiaries to) use commercially all reasonable best efforts to preserve and maintain existing relations and goodwill with Governmental Authorities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities Business has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to JazzAlkermes, Azur the Elan Parties shall not and shall cause each of the Azur Group Entities their respective Subsidiaries not to, directly or indirectly do, or commit to do, any of the following:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, New Alkermes or any Azur of the New Alkermes Group EntityEntities;
(ii) issue, deliver, pledge, encumber, sell encumber or authorize to sell any shares of capital stock of or other equity interests in New Alkermes or any Azur New Alkermes Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of New Alkermes or any Azur New Alkermes Group Entity or amend any terms of the outstanding securities of New Alkermes or any Azur New Alkermes Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur the Business, New Alkermes and the New Alkermes Group EntityEntities only, recapitalizationmerge or consolidate with any other Person, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division other than, in each case, in the Ordinary Course of any other PersonBusiness;
(v) sell, lease, license, assign, transfer, abandon, convey or otherwise dispose of (1) any assets, securities, rights or property of New Alkermes or any Azur New Alkermes Group EntityEntity or (2) any asset, rights or properties used in the Business, other than in each case (A) sales of inventory and equipment in the ordinary course Ordinary Course of business and consistent with past practicesBusiness, or (B) transactions that are in the Ordinary Course of Business and not individually in excess of $500,0001,000,000, (C) transfers of cash and cash equivalents to or as directed by Elan or (D) transactions set forth on Schedule 5.4(a)(v);
(vi) manage Modified Working Capital and the Net Cash Amount other than in the Ordinary Course of Business, or take any action for the purpose of changing the calculation or amount of Modified Working Capital or Net Cash Amount;
(vii) fail to maintain inventory of the Business (as determined in accordance with U.S. GAAP) at a level between 85% and 115% of inventory reflected on the Business Balance Sheet;
(viii) with respect to New Alkermes and the New Alkermes Group Entities, incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(viiix) create or permit the creation of (A) any Lien on the Purchased Interests or (B) any Lien (other than a Permitted Lien) on any asset of the assets of any Azur Group Entities Business other than in the ordinary course Ordinary Course of business Business or that would not materially and consistent with past practicesadversely affect the ability to conduct the Business following the Closing in the same manner as currently conducted;
(viiix) except in the ordinary course Ordinary Course of business and consistent with past practicesBusiness, enter into or adopt any new, or amend or terminate any existing, Benefit Employee Plan (including any trust or other funding arrangement), other than as required by Law;
(ixxi) except to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity Employee Plans existing as of on the date of this Agreement Agreement, or adopted or entered into after as set forth on Section 3.20(c) of the date of this Agreement without violation of this Section 5.4(a): (A) Elan Disclosure Schedule, make any new grant grants or awardawards to, or vest, accelerate or otherwise amend modify any existing grant, benefit or awardawards made to, under any Benefit Plan, (B) or increase the compensation payable or to any Employeebecome payable to its officers, Independent Contractor, consultant (directors or similar relationship) employees or director of any Azur Group Entity (C) pay any severance or bonus not otherwise due to any Employeeits officers, current directors or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000employees;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Employee Plan, except to the extent required by the existing terms of such Benefit Employee Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance as a result of a change of control of New Alkermes or any Azur New Alkermes Group Entity;
(xvi) renew or (except pursuant to the transactions set forth on Schedule 5.4(a)(v)) enter into any Contract with any non-compete compete, exclusivity or exclusivity provisions similar agreement that would contractually restrict or limit the operations of any Azur New Alkermes or the New Alkermes Group Entity in any material respectEntities or, after the Effective Time, of Alkermes or its Subsidiaries;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Business Material Contract;
(xviii) enter into any Contract, contract other than (A) as a result of the transactions set forth on Schedule 5.4(a)(v) or (B) in the ordinary course Ordinary Course of business and consistent with past practices Business and that does not require (x) a term in excess of one year or (y) payments by New Alkermes or any Azur New Alkermes Group Entity in excess of $500,000 per annum1,000,000;
(xix) other than (A) in connection with any actual or alleged breach of this Agreement or any Related Agreement or (B) the commencement of any litigation for patent infringement in response to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filing, commence or settle or compromise any litigationmaterial litigation relating to the Business (unless such settlement calls only for the payment of money by Elan or a Continuing Affiliate), or waive, release, relinquish release or assign any material claims or material rightsrelating to the Business, including with respect to any Azur IP Business Intellectual Property Rights;
(xx) adopt any change, other than as required by IFRSapplicable generally accepted accounting principles, in its accounting policies, procedures or practices;
(xxi) license (except pursuant to the transactions set forth on Schedule 5.4(a)(v)) or permit any rights to lapse in any Material Azur IP Business Intellectual Property Rights;
(xxii) with respect to any New Alkermes Group Entity, (A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (D) enter into any closing agreement, settle any Tax claim or assessment relating to any of the Azur Group EntitiesElan Parties or any of their Subsidiaries, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case Elan Party or any of its Subsidiaries, other than elections, filings, settlements, closing agreements, extensions or waivers made in the ordinary course Ordinary Course of business consistent with past practices) if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing DateBusiness;
(xxiii) lend money fail to any person (except for business expenses to its current employees in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Person;
(xxiv) make any capital expenditures, except for capital expenditures that, when added with respect to all other capital expenditures made on behalf the Business consistent with the Ordinary Course of the Azur Group Entities during the Pre-Closing Period, do not exceed $1 millionBusiness; or
(xxvxxiv) agree or commit to do any of the foregoing.
Appears in 1 contract
Conduct of the Business. Azur agreesPending the Closing. During the period from the date of this Agreement to the Closing, as Xxxxxx and the Sellers shall use commercially reasonable efforts to itself cause the Company and its SubsidiariesSubsidiaries to conduct their respective businesses and operations in the ordinary course, thatto maintain and preserve their business organization and their material rights and franchises and to retain the services of their officers and key employees and maintain relationships with customers, suppliers, lessees, licensees and other third parties to the end that their goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, during the Pre-Closing Periodperiod from the date of this Agreement to the Closing, except as set forth in Section 5.4 Xxxxxx and the Sellers shall use commercially reasonable efforts to cause the Company and its Subsidiaries not to, without the prior written consent of Purchaser:
(a) do or effect any of the Azur Disclosure Schedulefollowing actions with respect to the Company's or any of its Subsidiaries' securities: (i) adjust, as contemplated in Schedule 1split, as required by this Agreement combine, recapitalize or the Related Agreementsreclassify its capital stock, as reasonably necessary to effect the Reorganization (subject to and in accordance with this Agreement and the Related Agreements)ii) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, other than pursuant to that certain Tax Sharing Agreement (unexecuted as otherwise agreed to of the date hereof but in writing effect by Jazz (such mutual agreement not to be unreasonably withheld, conditioned or delayed)and practice) by and between the Company and Xxxxxx, (xiii) grant any Person any right or option to acquire any shares of its capital stock, other than grants of rights or options (A) to individuals who are hired or promoted on or after the date hereof, (B) after prior notice by PanAmSat to the chief executive officer of Euripides describing special circumstances to employees affected by such circumstances, and (C) to acquire not more than 3,000,000 shares of Company Common Stock, in each of the Azur Group Entities shall conduct its business and operations solely case in the ordinary course of business and business, consistent with past practices and, to practice and which will not accelerate in vesting or exercisability as a result of or in connection with the extent consistent therewith (and subject to the restrictions set forth in transactions contemplated by this Section 5.4(a))Agreement, (yiv) each issue, deliver or sell or agree to issue, deliver or sell any additional shares of the Azur Group Entities will use commercially reasonable efforts to preserve and maintain existing relations and goodwill with Governmental Authoritiesits capital stock or any securities, employees, customers, brokers, suppliers and other Persons with which any of the Azur Group Entities has significant business relations and (z) subject to applicable Law as agreed in good faith by counsel to Jazz, Azur shall not and shall cause each of the Azur Group Entities not to, directly instruments or indirectly do, obligations convertible into or commit to do, any of the following:
(i) declare, accrue, set aside exchangeable or pay any dividend or make any other distribution in respect of exercisable for any shares of its capital stock or other securitiessuch securities (except pursuant to the exercise of outstanding options and options issued after the date hereof) or (v) enter into any agreement, understanding or repurchase, redeem arrangement with respect to the sale or otherwise acquire any shares voting of its capital stock or other securities of, or other ownership interests in, any Azur Group Entitystock;
(iib) issuetake any intentional or improper action to interfere with the Company's or its Subsidiaries' existing contractual or economic relationships with its suppliers, deliverequipment manufacturers, dealers and retailers;
(c) sell, transfer, lease, pledge, encumbermortgage, sell or authorize to sell any shares of capital stock of or other equity interests in any Azur Group Entity, or any securities convertible into any such shares of capital stock or other equity interests, or any rights, warrants or options to acquire any such shares of capital stock or other equity interests, except with respect to exercise of Azur Options outstanding prior to the date of this Agreement;
(iii) amend or otherwise alter (or propose any amendment or alteration to) the Governing Documents of any Azur Group Entity or amend any terms of the outstanding securities of any Azur Group Entity;
(iv) effect or become a party to any Contract relating to a Competing Transaction with respect to each Azur Group Entity, recapitalization, reclassification of shares, stock split, reverse split or similar transaction with respect to each Azur Group Entity, or make any investment in any equity securities of any other Person, including any joint venture, or acquire the stock or all or substantially all of the assets or rights of any other Person or any division of any other Person;
(v) sell, lease, license, assign, transfer, abandon, convey encumber or otherwise dispose of any assets, securities, rights amount of its property or property of any Azur Group Entity, other than in each case (A) sales of inventory and equipment in the ordinary course of business and consistent with past practices, or (B) not individually in excess of $500,000;
(vi) incur any Indebtedness, enter into any new or amend existing facilities relating to Indebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities or guarantee any debt securities;
(vii) create or permit the creation of any Lien (other than a Permitted Lien) on any of the assets of any Azur Group Entities other than in the ordinary course of business and consistent with past practices;
(viii) except in the ordinary course of business and consistent with past practices, enter into or adopt any new, or amend or terminate any existing, Benefit Plan (including any trust or other funding arrangement), other than as required by Law;
(ix) except that is material to the extent required by the terms of any Benefit Plan or any Contract with an Independent Contractor or consultant (or similar relationship) of any Azur Group Entity existing as of the date of this Agreement or adopted or entered into after the date of this Agreement without violation of this Section 5.4(a): (A) make any new grant or awardCompany and its Subsidiaries, or vest, accelerate or otherwise amend any existing grant, benefit or award, under any Benefit Plan, (B) increase the compensation payable to any Employee, Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity (C) pay any severance or bonus to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(x) enter into any Contract pursuant to which any Azur Group Entity may become obligated to make any severance, termination or similar payment, or any bonus or similar payment (other than payment in respect of base salary), to any Employee, current or former Independent Contractor, consultant (or similar relationship) or director of any Azur Group Entity;
(xi) terminate any employee other than for cause (in which case Azur shall first consult with Jazz), or hire any employee, in either case, whose annual base compensation exceeds or would exceed $150,000;
(xii) enter into or forgive any loan to employees, directors, or consultants;
(xiii) enter into any new collective bargaining agreement or agreement with a trade union;
(xiv) contribute any material amount to any trust or other arrangement funding any Benefit Plan, except to the extent required by the existing terms of such Benefit Plan, trust or other funding arrangement, by any collective bargaining agreement, by any written employment agreement existing on the date of this Agreement, or by applicable Law;
(xv) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (B) enter into any agreement or exercise any discretion providing for acceleration of payment or performance taken as a result of a change of control of any Azur Group Entity;
(xvi) renew or enter into any Contract with any non-compete or exclusivity provisions that would contractually restrict or limit the operations of any Azur Group Entity in any material respect;
(xvii) (A) enter into, or permit any of the assets owned or used by it to become bound by any contract that is or would constitute a Material Contract, other than Contracts specifically relating to actions falling with the exceptions to the covenants set forth in clauses (v), (xi) or (xxiv) of this Section 5.4(a), or (B) modify in any material respect, amend in any material respect or terminate any Material Contract;
(xviii) enter into any Contractwhole, other than in the ordinary course of business and business, consistent with past practices and that does not require (x) a term in excess of one year or (y) payments by any Azur Group Entity in excess of $500,000 per annumpractice;
(xixd) other than make or propose any changes in its certificate of incorporation or by-laws (Aor equivalent organizational documents);
(e) in connection merge or consolidate with any actual other Person or alleged breach of this Agreement acquire assets or any Related Agreement or (B) the commencement capital stock of any litigation for patent infringement in response other Person which are material to any certification of non-infringement or invalidity in respect of any Approved Product contained in any ANDA or similar filingthe Company and its Subsidiaries, commence or settle or compromise any litigationtaken as a whole, or waive, release, relinquish or assign enter into any material claims or material rights, including confidentiality agreement with any Person with respect to any Azur IP Rightssuch transaction;
(xxf) adopt create any changeSubsidiaries which are material to the Company and its Subsidiaries taken as a whole and which are not, other than as required directly or indirectly, wholly owned by IFRS, in its accounting policies, procedures or practicesthe Company;
(xxi) license or permit any rights to lapse in any Material Azur IP Rights;
(A) make any change in any annual accounting period or adopt or change a method of accounting for Tax purposes, except as required by applicable Law, (B) make or change any Tax election, (C) file or amend any Tax Return or (Dg) enter into or modify any closing agreementemployment, settle severance, change in control, termination or similar agreements or arrangements with, or grant any Tax claim bonuses, salary increases, severance or assessment relating to termination pay to, or otherwise increase the compensation or benefits of, any officer, director, consultant or employee of the Azur Group Entities, surrender any right to claim a refund of Taxes, Company or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Azur Group Entity (in each case its Subsidiaries other than electionspayment of severance or termination benefits or increases in salary, filings, settlements, closing agreements, extensions compensation or waivers made benefits granted in the ordinary course of business consistent with past practices) if such electionpractice, adoption, change, amendment, agreement, settlement, surrender, consent except as may be required by Applicable Law or other action would have the a binding written contract in effect of increasing the Tax liability of the Azur Group Entities or the Jazz Group Entities for any period ending after the Closing Date or decreasing any Tax attribute of any Azur Group Entity or the Jazz Group Entities existing on the Closing Datedate of this Agreement;
(xxiiih) lend money except as may be required by Applicable Law or by accounting principles, change any method or principle of accounting in a material manner that is inconsistent with past practice;
(i) take any action that would reasonably be expected to any person result in the representations and warranties set forth in Article 4 becoming false or inaccurate such that the condition set forth in Section 8.2(a) would fail to be satisfied;
(j) except for business expenses any refinancing of the promissory note dated May 15, 1997, issued by the Company to Xxxxxx, enter into or carry out any other transaction which is material to the Company and its current employees Subsidiaries, taken as a whole, other than in the ordinary and usual course of business;
(k) enter into or amend any agreement or understanding between the Company and either of Xxxxxx or GM or their respective Subsidiaries (other than agreements entered into in the ordinary course of business and consistent with past practices) or guarantee the indebtedness of any Personbusiness);
(xxivl) make take any capital expenditures, except for capital expenditures that, when added action which could reasonably be expected to all other capital expenditures made on behalf adversely affect or delay the ability of any parties hereto to obtain any approval of any Governmental Body required to consummate the Azur Group Entities during the Pre-Closing Period, do not exceed $1 milliontransactions contemplated hereby; or
(xxvm) agree in writing or commit otherwise to do any of the foregoinganything prohibited by this Section 7.2.
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